Don Blankenship, a rich man in West Virginia, is the chairman, president and chief executive of A.T. Massey, the biggest coal company in his state, often the subject of criticism over pollution and its militant anti-union policies.
In 2002, Massey Coal lost a major court case against another company. A jury found Massey had set out to destroy the other company, including by breaking contracts with it, because it had concluded that the benefit of having the company out of the way was greater than the cost of any likely damages a court might award. The jury gave the business $50million in compensatory and punitive damages, a lot more than Massey had calculated. Massey Coal appealed to the West Virginia Court of Appeals.
West Virginia is one of those quaint American states where state judges are elected, not appointed. As it happened, an election was coming up. A sitting judge was standing for re-election; on his record, it was unlikely he would have upset the verdict. He was being opposed by a conservative trial lawyer, Brent Benjamin.
Blankenship donated $1000 the maximum allowed by law to Benjamin's campaign. He also donated almost $US2.5million to a public interest group called ''and for the sake of the Kids'' a group whose sole purpose seemed to be opposing the sitting judge and supporting Benjamin. And Blankenship spent a further $US500,000 on independent direct mailings, solicitations for donations and newspaper and TV advertisements urging a vote for Benjamin. The sitting judge, Warren McGraw, according to the ads, was ''soft on crime'' and ''soft on drugs''.
It worked. Benjamin won with about 53 per cent of the vote, about 60,000 votes ahead of McGraw. Blankenship's contributions had exceeded all other campaign spending combined.
In due course, Massey's appeal came before the Court of Appeal. Benjamin refused an application that he step down because of a perception of bias the idea that a reasonable outsider might think he was in Blankenship's pocket, or could, at the least, have an unconcious predisposition to him.
Benjamin was part of a 3-2 majority upholding Massey's appeal, not on the facts, but on a jurisdictional technicality. A dissentient judge said that the ''majority's opinion is morally and legally wrong''. The same judge later said ''Blankenship's bestowal of his personal wealth, political tactics and friendship have created a cancer in the affairs of this court''.
On a rehearing, Benjamin again refused to recuse himself. He examined his conscience and declared not only that he entered the matter with an entirely unprejudiced mind, and denied that a reasonably disinterested observer might suspect otherwise. In any event, he seemed to think a subjective rather than an objective test appropriate: if such matters were to depend merely on ''appearances'', he said. the justice system of the great state of West Virginia would be ''subject to the vagaries of the day a framework in which predictability and stability yield to supposition, innuendo, half-truths and partisan manipulations.''
The matter of Bejamin's unprejudiced mind went to the US Supreme Court which handed down its decision on Monday. The result was reasonably predictable for those who have watched the court in action, or the court in action during the short oral hearing. Chief Justice Roberts had been very agitated during argument: he couldn't seem to see that any suspicion of prejudice could even arise.
The court's resident ideological imp, Anthony Scalia seemed to have no trouble with the idea that an honest judge ought to have recused himself in such a case, but to have a great problem with the idea that a superior court should take upon itself the power to order him to do so. Interfering would not preserve public confidence in the system of justice, but erode it, since it would invite every dissatisfied litigant to find grounds for alleging bias, and add to the perception that litigation was a game. In the event, four of the court's stout conservatives would not have intervened. (Scalia, some might remember, was the judge who did not think it wrong, or might create unfortunate perceptions, to go hunting with his old mate, then vice-president Dick Cheney, at a time when Cheney was a litigant in a case before the court.)
But five of the Supreme Court thought Benjamin beyond the pale and ordered the matter reheard by a court which did not contain him. They reiterated the objective test which is the same as in Australia, even if we do not elect judges and, saying that this was an extreme and obvious case, denied the plaints of the Chief Justice that this would make administration of the courts impossible.
The case could not, of course, happen in Australia, even if the question of the standards by which one assesses bias, or the appearance or potential of bias, are very much live issues here too. There are many ways by which friendships, relationships, histories and entanglements of judges and parties to litigation will cause raised eyebrows, and a good many have been tested over the years.
The same principles, of course, arise whenever the concept of ''conflict of interest'' is involved a matter that runs far deeper into politics and public administration. Many a politician who would raise eyebrows at the shenanigans of Blankenship and Benjamin are prepared to adopt exactly their ''who, me?'' approach whenever it is suggested there is an unnatural relationship between their decision-making and campaign donations.
ACT Labor is seeking to separate itself from the Labor Clubs because of a widespread public perception which has been allowed to persist too long that its dependence on these clubs for money has made it beholden to poker machines.
Elsewhere, there are strong suspicions of the connections between Labor particularly NSW Labor and development lobbies, and gaming lobbies. Every now and again comes strong evidence that some of the relationships go beyond the unwise to the corrupt and the venal. There are many other powerful interests seen as having undue influence over politicians and political parties. Some politicians admit this. Others admit it, and in some cases, actual corruption of some players, but insist the public does not care much. Other politicians, including John Howard once he got sick of administering high standards, pretend that the test is not an objective one of public perception but a subjective one of whether a person has been corrupted or turned by conflict of interest.
For me, however, the matter is also interesting, and local, on two other levels. One involves one of the fundamental arguments against a bill of rights: the argument that adoption of such a bill will mean that ''unelected'' and ''unaccountable'' judges will be making the law, rather than elected and accountable politicians. Would we rather have an elected judge implicitly beholden to all sorts of interests resolving our disputes than an unelected one?
Our judges are unelected one could hardly say they were unaccountable given the publicity within which they operate and the scope for appeal for a reason, which is the hope that their lack of dependence on the whims of politicians or major public mood swings will make them independent of mind, fair and just in their approach, and fearless of personally inconvenient consequences. If they were constantly looking over their shoulder, worrying about how some lobby (perhaps funded by some rich litigant with secondary motives) might use it against them in an election, there would be little doubt that some would be influenced to bend to popular opinion, or a position that would minimise criticism. Heavens knows, even in good old Australia without judicial elections, there is evidence that some judges play to the gallery in the hope of executive preferment.
How much worse would it be were they in the hands of campaign committees moving smoothly among the corporation, the pubs, the clubs and the developer lobbies, canvassing for donations. With no commitments, of course, any more than when the political parties put their hands out.
Jack Waterford is Editor-at-Large.
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