The Supreme Court's ruling last week in the case of a grandiosely unethical West Virginia justice opened a new field of constitutional review -- the high court may now consider when an elected state court jurist has been so tainted by politics that due process requires him to recuse himself from a case.
In West Virginia, a coal executive spent more than $3 million to unseat a sitting state Supreme Court justice; it was money well spent, as the justice was defeated by voters and replaced by Brent Benjamin. Benjamin then did what was expected of him and cast a deciding vote in overturning a $50-million jury award against the executive's coal company.
Benjamin's participation in the case assured him a place in the judiciary's annals of shame, and his corruption was so blatant that the U.S. Supreme Court majority that rebuked him argued that it was not opening the door to many future challenges. Surely, it reasoned, no justice will behave this badly again. That may or may not prove to be true -- the court offered little in the way of guidance as to what constitutes impermissible political influence -- yet Benjamin's case sadly but surely will not be the last in which big-money politics and judicial independence collide.
Indeed, California has wrestled with this problem before -- and quite possibly could again.
California's system for selecting Supreme Court justices is much better than West Virginia's. Candidates for the court here are nominated by the governor, confirmed by a state commission and then placed on the bench. They must periodically stand for retention, but they are not, as they are in West Virginia, subject to direct challenge by rival candidates. A retention election can cost a justice his or her seat, but it does not let voters kick out one justice and install their own replacement.
California's rules have helped balance the judiciary's independence with the public's fair insistence on accountability, but even this state's reasonable retention process has been subject to tilt. Most notable was the 1986 retention election that removed Chief Justice Rose Bird and two associate justices, Cruz Reynoso and Joseph Grodin. Much reflection has gone into that race in the decades since, and opinions differ on its merits. Two truths, however, stand the test of deep inquiry: The forces arrayed against Bird were not motivated solely by her opposition to the death penalty -- that was cover for a second complaint, which was her defense of consumer rights against corporate power -- and Reynoso and Grodin were victims of a special-interest crusade against a vulnerable chief.
