Supreme Court weighs in on elected judge bias

(03-04) 04:00 PST Washington --

Concerned about dwindling confidence in the impartiality of judges, the Supreme Court leaned Tuesday toward forcing elected judges to step aside from cases that would raise an appearance of bias if they took part.

"Our whole system is designed to ensure confidence in our judgments," said Justice Anthony Kennedy, often the crucial vote on the divided court. Large campaign contributions in judicial elections are undermining faith in judges, several justices said.

During lively arguments in a closely watched case from West Virginia, the court's four liberal justices and Kennedy all expressed support for a ruling that the Constitution's guarantee of a fair trial could require judges not to participate in a case in which there was a likelihood of bias.

The West Virginia case involved more than $3 million spent by the chief executive of Massey Energy Co. to help elect state Supreme Court Justice Brent Benjamin at the same time his company was appealing a verdict, which now totals $82.7 million with interest. Benjamin refused to step aside from the case, despite repeated requests, and was part of a 3-2 decision to overturn the verdict.

Even as the high court struggled to find the right standard that would trigger recusal, the term for a decision to step aside, Justice John Paul Stevens indicated that the facts made the decision easy in Benjamin's case.

"We have never confronted a case as extreme as this before," Stevens said, invoking former colleague Potter Stewart's line about pornography. "This fits the standard that Potter Stewart articulated when he said 'I know it when I see it.' "

Arguing strenuously against that view were Chief Justice John Roberts and Justice Antonin Scalia, who said the court should not be "adopting out of nowhere" a position that the appearance of bias is enough to violate a party's constitutional right to due process.

Scalia said the court had never decided that anything other than a judge's direct financial interest in the outcome of a case were grounds for recusal. Finding that a judge must recuse because of either an "appearance of bias" or because he owed a "debt of gratitude" would open a limitless ability for litigants to challenge judges they didn't like.

Federal judges are guided by a law that leaves recusals up to them, just as Benjamin made his decision on his own. Financial conflicts leave no room for discretion; judges can't sit on a case involving a company in which they own shares, for example.

Financial holdings in a company appearing before the court are the most frequent reasons that cause justices to stay out of cases.

Roberts and Justices Samuel Alito and Stephen Breyer have had to sit out cases in recent terms because of their investments.