EDITORIAL: A lesson for legislators from a West Virginia case

Jun 15, 2009 (The Knoxville News-Sentinel - McClatchy-Tribune Information Services via COMTEX) -- MEE | Quote | Chart | News | PowerRating -- A U.S. Supreme Court case closely watched by many in Tennessee has been decided. In a 5-4 ruling, the high court said that a West Virginia chief justice should have recused himself from a case involving a big-money donor to his election campaign.

The ruling involved Brent Benjamin, the state's chief justice, who was elected in 2004 in a campaign in which one Don Blankenship spent about $3 million to oust the incumbent and help Benjamin win. The court later overturned a $50 million ruling against Blankenship's company, Massey Energy.

Two other justices recused themselves. One also urged Benjamin to step down, arguing that Blankenship had created a "cancer in the affairs of this court." Benjamin did not step down.

The West Virginia case has been mentioned numerous times by those who support the current plan of judicial selection for Tennessee and strongly oppose judges standing for election similar to the way legislators and the governor are elected. The Tennessee plan, which involves a Judicial Selection Commission for recommending justices and appellate court judges to the governor will expire on July 1 if not renewed in some form.

Tennessee lawmakers have discussed several options, including direct election, an interim plan similar to the current system but with some changes and a constitutional convention to sort it all out. With the legislative session near its end, it appears the current system with less lawyer organization influence and more openness has the best chance of winning approval.

The West Virginia case has sparked widespread criticism as a blatant example of how big money can buy justice.

Writing for the majority, Justice Anthony Kennedy said, "... there are objective standards that require recusal when 'the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.' "

Kennedy said there was no allegation "of a quid pro quo agreement" but that Blankenship clearly had a vested stake in the outcome of the election. Neither Kennedy nor the court put a price on how much monetary influence was too much or at what point a justice should recuse himself or herself.

That omission appeared to rankle the minority. Chief Justice John Roberts, writing the dissenting opinion, criticized the majority for providing no guidance when a recusal will be constitutionally required.

Roberts continued, writing that an "amorphous probability of bias will itself bring our judicial system into undeserved disrepute and diminish the confidence of the American people in the fairness and integrity of their courts. I hope I am wrong."

We, too, hope he is wrong. In fact, we believe he is definitely wrong. The confidence of the American people is not served well when justices and judges refuse to step down from a case in which they have even the perception of bias or conflict of interest.

The lesson for Tennessee lawmakers considering a change in the way the state's top judges are selected is to stay away from direct elections and the influence of money on campaigns for judicial office.

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