The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Justice for Sale?

Posted by judicialethicsforum on Tuesday, January, 13, 2009

The Supreme Court has granted cert in Caperton v. A.T. Massey Coal Co., No. 08-22.  The official question presented puts the issue bluntly:

[Acting Chief] Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court — more than 60% of the total amount spent to support Justice Benjamin’s campaign — while preparing to appeal the verdict against his company.  After winning election to the court, Justice Benjamin cast the deciding vote in the court’s 3-2 decision overturning that verdict. The question presented is whether Justice Benjamin’s failure to recuse himself from participation in his principal financial supporter’s case violated the Due Process Clause of the Fourteenth Amendment.

It is difficult to conclude that the failure to recuse is anything but inexcusable (in addition to the Due Process Clause, see generally 1990 Canon 3E(1)(e) and 2007 Rule 2.11(A)), but to be fair, Chief Justice Benjamin has produced a lengthy defense of his refusal, which can be found here.  The Brennan Center has kindly posted the briefs in support of petitioner, including those of the ABA and Justice at Stake, all of which can be found here.  This destined-to-be watershed case is set for oral argument on March 3, 2009.  Stay tuned. 

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2 Responses to “Justice for Sale?”

  1. […] who are hostile to recusal (e.g., Justices Scalia and Breyer) will use the extreme facts of the W.Va. case to sharply limit the statutory and constitutional recusal requirement.)   The most important […]

  2. […] released the transcript of the oral argument in the West Virginia disqualification case (see Justice for Sale?), which was argued on March 3, 2009.  Because, for example, Justice Kennedy seemed favorably […]

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