Today, the Supreme Court decided that the title question of this post does, in fact, have an answer... and if it is "too much," then the judge may not hear certain cases. In this instance, it's referring to Chief Justice Benjamin of the Supreme Court of West Virginia, who was elected during the pendency of a large commercial lawsuit largely on the back of campaign contributions from one of the two companies (or, at least, its CEO and/or PACs and other actors beholden to him) involved in that lawsuit. He refused to take himself out of the lawsuit and cast the deciding vote. Care to guess which way he voted?
This is not to say that Justice Benjamin was, in fact, prejudiced in favor of either party; I simply have no knowledge of that. Today's US Supreme Court opinion treats actual prejudice as irrelevant; instead, what matters is the appearance of prejudice.
In other words, based on the facts presented by Caperton, Justice Benjamin conducted a probing search into his actual motives and inclinations; and he found none to be improper. We do not question his subjective findings of impartiality and propriety. Nor do we determine whether there was actual bias.
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We turn to the influence at issue in this case. Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case. We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.
Applying this principle, we conclude that Blankenship’s campaign efforts had a significant and disproportionate influence in placing Justice Benjamin on the case.
Caperton v. A.T. Massey Coal Co., Inc., No. 08–22 (08 Jun 2009) (PDF), slip op. at 12–14 (internal citations omitted).
Bluntly, this standard is far too weak. I believe that the legal profession as a whole — let alone judges — must follow the military officer's code on conflicts of interest: The appearance of a conflict of interest shall be treated as an actual conflict of interest pending clearance after reasonable investigation by a disinterested party competent to both perform and evaluate the investigation. That leads implies another problem, though... and the Supreme Court has steadfastly refused to grapple with it.
I do not believe that elected judgeships fulfill the Republican Form of Government clause (U.S. Const. Art. IV, § 4). After all, the only "Republican Form of Government" that the Founders could have been pointing to that allowed for a separately elected executive was the one they were constructing for the federal government... which included appointed judges. Further, at that time judges in England and (as far as I've been able to determine) the rest of Western Europe were also appointed, not elected.
But even if judicial elections do fit within the minimum constitutional scheme, they are such a horrible idea that they inherently call the equal-handed administration of justice into question... to a greater extent than does any system involving nomination followed by confirmation, however imperfect that may become in practice. Not too long ago, it was Illinois — not West Virginia — that was the subject of handwringing over a nasty, expensive election campaign to our state Supreme Court... and since it was for a Justice from only a part of the state, it got even worse, because he gets to cast binding votes for the whole state. And not too long after I got out of law school, a local jurist ran for election on a "tough on crime" platform. That's right: His ads to become a judge in criminal cases flaunted that he'd have little, if any, sympathy for any accused wrongdoer. <SARCASM> Yeah, I'm sure he'll give anyone who can't afford private defense counsel a fair trial — just as fair as the trial he'll give anyone who can. Pro se defendants? You've got to be kidding me! </SARCASM> And regardless of the substance — for all I know, this judge actually does give everyone a fair trial — those attack ads with barely concealed glee/horror that the judge's opponent had let an accused murderer go free on a "technicality" and had refused to impose the death penalty on a different (convicted) murderer have certainly undermined the credibility of the criminal justice system in this community. I do keep my ears open in public around here, and you'd be surprised how well-remembered those ads are among some members of the public when they don't think anyone is listening...