Is Justice to the Highest Bidder an Endagered Species?

Yesterday, the U.S. Supreme Court handed down its judicial ethics decision in Caperton, et. al. v. A.T. Massey Coal Co., Inc. (opinion available here), putting a smack down on justice to the highest bidder West Virginia-style. The majority issued the common sense holding that due process is violated when the "probability of actual bias . . . is too high to be constitutionally tolerable." Say, like when a Justice does not recuse himself from a $50 million lawsuit involving a defendant/appellant who has donated $3.1 million in direct and indirect contributions to the elected Justice's campaign in an election yea (for background on the absurd W. Wa. case, read WSJ blog here). Seems pretty reasonable: when a litigant makes massive contributions to a judicial official, the judge should recuse himself from that case.

But Chief Justice Roberts' minority opinion offers the most questions for the issue of "justice for sale" in Nevada. And by questions, we literally mean questions. Chief Justice Roberts included a list of 40 questions in his dissent (starts p. 28), which he claims the majority's opinion leaves unanswered, including the question of whether a judge must recuse herself from hearing a case litigated by an attorney who made a significant donation to the judge's campaign.

Seems particularly relevant for Nevada's judiciary, which has [at least in the recent past] turned a blind eye to questions of conflict of interest (see prior post here) and where attorneys/litigants can contribute up to $10,000 to a judge's campaign. Reached for comment on how the case would impact Nevada, State Bar President Bruce Beesley said "Judges here typically are very aware of bias . . . and try to avoid it." (RJ) Hmmm . . . what do you think readers? Do we have the squeaky-clean Silver State judiciary Mr. Beesley imagines?

In related Nevada news, this issue may soon be moot as the Nevada legislature just passed a bill calling for appointment of judicial candidates. (LV Sun)