EDITORIAL: Influence in courts

Jun 09, 2009 (The Hays Daily News - McClatchy-Tribune Information Services via COMTEX) -- MEE | Quote | Chart | News | PowerRating -- You wouldn't think it would take a U.S. Supreme Court ruling to force judges to recuse themselves from cases that involve their own campaign supporters, but it has. The fact it was only a 5-4 vote provides us little comfort, but at least the majority of justices recognize the inherent potential for bias in such instances.

This week, the nation's highest court rendered its decision on Caperton v. Massey. The case involved several small West Virginia mining companies that were driven out of business by fraudulent activities of the much-larger Massey Energy Co. In the district courts, Massey lost and was fined $50 million. En route to appeal in the state supreme court, Massey's CEO spent more than $3 million to defeat one of that court's judges. The new justice repeatedly refused to step aside from the appeal -- and repeatedly cast the deciding vote to overturn the ruling against Massey.

Monday, the U.S. Supreme Court said these factors violated Caperton et al from its constitutional right to a fair trial.

We applaud the justices for applying common sense as they deliberated the case. While no direct cause and effect was determined, the court recognized the appearance of bias is enough to deprive litigants of due process.

"Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when -- without the consent of the other parties -- a man chooses the judge in his own cause," Justice Anthony Kennedy said for the court.

Why wasn't it a unanimous decision? The four dissenting justices objected on grounds this will unleash an onslaught of judicial challenges and grind the already slow wheel of justice to a halt.

In our extremely litigious society, we don't doubt that inevitability.

But the high court missed an opportunity to correct a wrong that is practiced in 39 states, including Kansas. Rather than trying to establish vague guidelines on when a judge should recuse themselves because some party before them has contributed to their campaigns, the Supreme Court should have ruled against judges ever having to campaign for office in the first place. It is a ridiculous practice not even utilized at the Supreme Court. Instead, the appointment process is employed.

"Judicial elections have become more expensive, more negative and more subject to influence by special interest groups," said Chief Justice Margaret Marshall of Massachusetts, president of the Conference of Chief Justices.

How expensive? Justice at Stake, which tracks campaign spending in judicial elections, reported candidates for supreme courts in just those 39 states have raised more than $168 million since 2000. That's a lot of potential bias in the balance.

We long have argued against electing judges. Perhaps Kansas legislators might look at the West Virginia situation as a perfect example of why we shouldn't continue the practice. Money can influence the outcomes of cases even when judges are perfectly objective. And there are ample examples of judges with slightly less objectivity.

Editorial by Patrick Lowry

plowry@dailynews.net

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