State Supreme Court Justice Brent Benjamin is forced to recuse himself from a very controversial case. On June 8, the United States’ Supreme Court issued a ruling in Harman v. Massey that limits Benjamin’s First Amendment right of free speech, citing the appearance of impropriety because of Don Blankenship’s $3 million donation to defeat former Justice Darryl McGraw. This mandate carries far-reaching consequences and will complicate an already complex court system, limiting the abilities of judges to rule efficiently and effectively. Recusal is a necessary tool for the courts to uphold due process, but only required with actual bias to limit judicial manipulation.
In either an elective or appointive selection process, a judge is determined by his or her qualifications for the position, including a moral obligation to uphold the values of the legal practice. Therefore, a judge should be able to determine his ability to afford an unbiased ruling, or not. Relying on cheerleaders and naysayers to uphold our esteemed court system is risky and irresponsible. Limiting judicial insulation weakens the power of bench strengthens the power of manipulative interests. Chief Justice John Roberts, dissenting, “I, of course, share the majority’s sincere concerns about the need to maintain a fair, independent, and impartial judiciary—and one that appears to be such. But I fear that the Court’s decision will undermine rather than promote these values.”
Not only do judges have the obligation and ability to determine the need for recusal, many judges and justices have operated ethically throughout history. Dating back to Martin v. Hunter’s Lessee (1816), Chief Justice John Marshall appropriately recused himself because he had an active financial interest in the case could not rule appropriately. On the other hand, judges and justices have appropriately decided not to recuse themselves based upon the appearance of impropriety. For example, Bracy v. Gramley(1997) held that states are free to implement more rigorous recusal standards such as religious affiliation and prior speech, if they choose. Judicial equilibrium is supreme, but forced recusal under these circumstance is inconsistent with West Virginia’s lesser recusal standard.
Therefore, the United States Supreme Court stepped too far in mandating Benjamin’s recusal, and wrongfully interjected into West Virginia affairs. The United States Code (Title 28> Part I> Chapter 21> §455) outlines the recusal requirements for all judges and justices in the United States. Last amended in 1940, this portion of the U.S. Code is filled with subjective terms such as “substantial interest” and explicitly says that a judge “shall recuse himself.” Also, the language of the code was amended in 1940 to loosen the constraints upon judges, substituting “in which he has a substantial interest” in place of “concerned in interest in any suit”. The federal statute increased a judge’s discretionary recusal ability within reason, but apparently, the High Court feels no obligation to abide by these rules.
The high court’s majority sympathized with Caperton’s defense, trading judicial discretion for an “objective recusal standard” that establishes a concrete separation between honesty and impropriety. However, our standard burden of proof requires the accuser to prove actual bias; no one in the American legal system is expected to prove themselves innocent, but only to be proven guilty. Chief Justice Roberts says this protects against court manipulation, and limits mandatory recusals to specific Constitutional requirements: a judge’s financial interest in the outcome, or the judge as a defendant. Where can the line ever be drawn?
James Bopp, Jr., General Counsel for the James Madison Center for Free Speech, filed an amicus brief supporting Benjamin’s right to adjudicate without proof of any actual bias. "If someone wants to manipulate justice, mandatory recusal based on campaign spending makes it easy to do so. All a party has to do is donate to judges they don’t think are favorable to them, and they can ensure that judge will never hear their case. Effectively, this is little more than an attempt to second guess the voters’ decision and undermine the existence of judicial elections."
With this recent ruling of the United States Supreme Court, a slippery slope has formed that is sure to yield more power to manipulative parties that argue technical process rather than the facts of the case. Opening the door for such manipulation, something must have disrupted the system to arrive at this conclusion. If the problem is Blankenship’s active interest in elected officials, he has a right to donate to and advocate issues freely. If this problem highlights a rogue court Justice, Benjamin previously issued a solid opinion, defending his right to rule based upon the absence of actual bias.
In this highly charged legal battle, the overarching dilemma rests between merit-based judicial appointments and elective means of selecting judicial candidates – and how we hold our judges and justices accountable. Without proposing massive policy changes toward non-partisan elections, the citizens of West Virginia must demand more dialogue before judicial elections to ask the tough questions of candidates and his or her opinions on specific issues. Moving forward, residents of the Mountain State must know whom they are selecting before seemingly hypothetical issues face subjective appeal to the United States Supreme Court. The questions are not: whether Blankenship is a crook, Benjamin is unethical, or whether the system is broken because politics reign over justice. The questions should be: whom are we electing, what does he or she stand for, and will they represent the interests of West Virginia within the law? Since many issues are determined subjectively with the “I know it when I see it” test, it is wise to know who is judging our fate and if they are qualified to assume the powers and responsibilities of a judge. If we elect judges through the political process, let them judge. If politics are the problem, let’s talk about how we select them.
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