Just over two years ago, the U.S. Supreme Court heard oral arguments in Caperton v. Massey, a case involving the ramifications of soaring campaign expenditures in state judicial elections. Caperton arose out of a West Virginia supreme court justice’s failure to recuse himself from a case against Massey Coal Company – despite the fact that Massey’s CEO had spent over $3 million in support of the justice in the last election. The Caperton Court ruled that the justice’s refusal to recuse himself violated the litigants’ right to a fair trial. Following Caperton, calls for reform have been widespread. However, as a recent report by the Brennan Center for Justice details, meaningful change has yet to materialize.
Post-Caperton reform has been especially slow in West Virginia, the situs of the initial controversy. In Caperton’s wake, West Virginia Governor (now Senator) Joe Manchin convened an Independent Commission on Judicial Reform, chaired by former U.S. Supreme Court Justice Sandra Day O’Connor. The Commission’s report eschewed altering in the way judges are selected in West Virginia, proposing more modest reforms, including the establishment of an intermediate court of appeals and a public financing pilot program for one of the two open supreme court seats in the 2012 election. The Legislature, however, has declined to authorize an intermediate appellate court and only $3 million has been allotted to the public financing pilot program. In 2010, the West Virginia Supreme Court released revised rules for appellate procedure, but none of these dealt directly with the recusal process.
Though recent events continue to show the perils of the politicization of judicial elections, momentum for reform seems to have slowed. As judicial campaigns become more costly – and more contentious – the U.S. Supreme Court may soon have a chance to refine what due process requires in the context of judicial elections.