<i>When should judges step aside?</i> Justices weigh closely watched case from W.Va.

By Mark Sherman

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.

Former Solicitor General Theodore Olson was three sentences into his argument Tuesday representing the other party in the Massey lawsuit, Harman Mining Co., and its president, Hugh Caperton, when Scalia cut in.

The Constitution’s right to a fair trial, Olson said, includes “a guarantee against even the probability of an unfair tribunal.”

“Who says?” Scalia said.

Scalia wrote at length five years ago to explain why he would participate in a case involving then-Vice President Dick Cheney, rejecting calls that he step aside because the two had gone duck hunting together. “My recusal is required if ... my impartiality might reasonably be questioned,” Scalia said then, dismissing the possibility because he spent little time with Cheney on their trip to Louisiana.

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.

Scalia said the court should not invoke the Constitution when there is no actual bias — a financial interest, say — requiring a judge to get off a case.

“We’re being urged to adopt out of nowhere a new standard of probability of bias. It’s not in the Constitution,” Scalia said.

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.

The court’s decision could have widespread significance. Judges are elected in 39 states and candidates for the highest state courts have raised more than $168 million since 2000, according to Justice at Stake, which tracks campaign spending in judicial elections.

The Conference of Chief Justices, representing the top judges in every state, set out seven factors for the Supreme Court to consider, include the size of the contribution and its timing.

Andrew Frey, a veteran Supreme Court advocate who represented Massey, asked the justices to put themselves in Benjamin’s shoes in an argument that also noted the justices decide for themselves whether to participate in cases.

“Do you really think you’d be incapable of rendering an unbiased decision?” Frey said.

The highly experienced Olson said Frey posed the wrong question. The justices should consider whether they would want to be judged by someone who was “selected with a $3 million subsidy by your opponent,” Olson said.

Olson argued that several factors combine to create an “overwhelming probability” that Benjamin would not be impartial, including the size of the campaign support and the fact that it represented more than half the money spent on his behalf. The money mostly went to an independent group that ran television ads against Benjamin’s opponent.

Massey rejects assertions that Benjamin owed a debt of gratitude to chief executive Don Blankenship or that Benjamin displayed any bias in his ruling. Benjamin has ruled against Massey at least four times, including in a unanimous refusal to hear the company’s appeal of a $260 million judgment won in another contract dispute.

Former judges and interest groups on both sides of the debate over campaign contributions have weighed in on the dispute. Wal-Mart and PepsiCo were part of a brief of businesses asking for a ruling that Benjamin should have removed himself from the Massey case. Alabama, Colorado, Delaware, Florida, Louisiana, Michigan and Utah urged the justices to let the states work out their own rules.

A decision is expected before July.

The case is Caperton v. Massey, 08-22.