The United States Supreme Court’s recent opinion in Caperton v. A.T. Massey Coal Co., raises some unique questions for our own system of electing judges in Texas.  Justice Kennedy, writing for the majority, holds that the campaign contributions of the chairman of the board and president of Massey Coal toward the campaign of a West Virginia Supreme Court candidate raised “the probability of actual bias ris[ing] to an unconstitutional level.” The majority gives little bright-line guidance for future cases, but in apparent recognition of the precedential implications of its holding, the majority is careful to emphasize the extreme nature of the facts of the case, including that the Massey chairman donated the maximum personal contribution to the candidate and $2.5 million to a political PAC, and those donations accounted for more than two-thirds of the total funds raised. The contributions were more than the total amount spent by all other supporters for the candidate.
The dissent, written by Chief Justice Roberts, expresses concern at extending due process to application of judicial disqualification. Instead, the dissent suggests that disqualification is a matter more properly left to the states to regulate by statute or rule. By extending due process to matters of disqualification, the dissent warns that the majority may actually undermine concerns for the need to maintain a fair, independent and impartial judiciary.  The Court’s opinions may be found at this link.

And now for my own personal editorial thoughts and comments: Neither view is very reassuring. The majority wants to keep the bar high to avoid future fights over disqualification, but in doing so, we are provided with no standard, which leaves doubt and ensures that there will be other fights to flesh out where the line should be drawn. And if these facts violated federal due process, something less might surely violate our Texas due process clause since our state supreme court has held that our state due process has “independent vitality” from the federal due process clause and the U.S. Supreme Court has observed that the Texas clause is arguably significantly broader than the federal due process clause. Certainly, the majority casts a huge shadow of doubt on PACs and PAC contributions in judicial campaigns.
   The dissenters’ view is no more reassuring. While the dissent pretends to call into question the underlying facts supporting disqualification based upon bias, even the dissent describes the facts as “bad” and seems to concede that Judge Benjamin should have disqualified himself. So, for the dissent to punt the issue back to the states to avoid what they describe as an expansion of due process, is unsettling to say the least. They’re talking about one of the three branches of government (of which they are members) and they’re not willing to say due process guaranties an impartial decision-maker? In my mind, it is incongruous to cut off application of due process to the judiciary while simultaneously accusing the majority of undermining public confidence in the judiciary.
If nothing else, we should take note of the dissent’s call to state law-making bodies and rule-making bodies to address this problem.  It is my personal hope that the governor will calls add judicial campaign finance reform, judicial disqualification, or election of judges to the list of items the legislature should tackle in its special session.  Failing that, our own Texas Supreme Court should exercise its rule-making authority to more precisely address this problem.  These state actions will help maintain public confidence in our judiciary.