justice. Disqualification for bias was
not an option in England.
In the United States, attempts
to identify such situations through
statutes and court rules have been
less than successful.
Rule 2. 11 of the ABA Model
Code of Judicial Conduct requires
disqualification “in any proceedings
in which the judge’s impartiality
might reasonably be questioned.”
The ABA and the majority of court
jurisdictions stress both actual impropriety and the appearance of
impropriety.
While most states and the federal
courts have emulated catch-all provisions like the ABA’s, only two
states have adopted a 1999 addition
that demands recusal when a state
judge receives a certain amount in
campaign contributions from a party
or lawyer.
West Virginia is not one of those.
It is one of 39 states that picks its
judges through some form of election. And while fundraising and
consequent conflicts of interest can
occur in any scheme—head-to-head
partisan elections, nonpartisan races
and retention ballots—most of the
allegations of conflict seem to arise
in partisan elections.
Former Justice Elliott Maynard
(left) with Massey CEO Don
Blankenship on the French
Riviera in July 2006
This photo, which came to light
in January 2008, raised a few
eyebrows in West Virginia, where
Blankenship’s company had a
controversial case before the
court. The photo played a part
in Maynard’s unsuccessful bid
for re-election four months later.
Not surprisingly, lawyers and business interests combine for anywhere
from half to two-thirds of money donated to judicial candidates in a given year.
The big money breakout came in
2000, when candidates for state supreme court seats raised $45.6 million, 60 percent more than the $28.2
million raised just two years before,
according to the Brennan Center
for Justice at New York University
School of Law.
That figure dipped to $29 million
in 2002, then bounced back to $42
million in 2004. In 2008, state supreme court campaigns were projected to collect nearly $34 million,
about the same as in 2006.
Although few judicial races involve fundraising with the intensity
found in West Virginia, most judges
have to guard against conflicts in
their workaday worlds. Even federal
judges, with lifetime appointments,
must pay attention to what people
and what documents pass through
their courts. Personal, family, business and professional relationships
also can sow seeds for a recusal motion alleging bias.
Still, many judges grope in the
dark. No one even knows how often
judges are actually asked to withdraw.
U.S. District Judge Charles N.
Clevert Jr. of Milwaukee says pro se
petitions almost always demand disqualification. Clevert says he relies
on the reasonableness of the complaint.
“The first thing that goes through
my mind is whether there is anything in the [recusal] motion relating
to a prior decision or something in
this case,” says Clevert.
Even with regular litigators whom
he knows, the more facts alleged,
the more likely the recusal motion
will succeed on grounds of bias in
Clevert’s court.
“If there are some facts in the rea-
