This morning, the Supreme Court handed down its decision in Caperton v. A.T. Massey Coal Co., which arose from an infamous West Virginia judicial election. By a 5-4 vote, the Court held that West Virginia Supreme Court Justice Brent Benjamin should have recused himself before hearing the case (twice) in which a major benefactor in his campaign sought to have an adverse verdict against his company reversed.
Benjamin's failure to do so violated Caperton's right to due process of law, which requires recusal when (quoting another case):
the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.The Court, via Justice Kennedy, stressed the fact that, while Benjamin made a searching inquiry and concluded that he wasn't actually biased in the case, the perception of bias requires an objective, rather than subjective, analysis. To most objective observers, the decision to recuse really isn't that close of a call.
It doesn't even sound like the dissenters (led by Chief Justice Roberts) really disagree on that score. The main thrust of the dissent, unconvincing to my ears, is a parade of horribles about all the questions left unanswered by the Court's decision. The dissenters crave the certainty of a bright line rule, but seem willing to sacrifice (dare I say it) "justice" or "fairness" in the process. In other words, letting the perfect being the enemy of the good.
The take away from this whole case, which now comes back to the WV Supreme Court of Appeals for a third time, is two fold.
First, it seems obvious that when you have judicial elections, the capacity for this kind of shenanigans is enhanced. It can still happen with appointment systems, too, but it would be more attenuated.
Second, it seems equally obvious that judges should not be able to decide recusal issues by themselves. The type of distanced objective analysis needed in cases of potential bias (or just the appearance thereof) is difficult to do on yourself. The best of intentions cannot always overcome the type of nearsightedness inherent in the process. The system should require something more than "trust me," in the end.