Judging Judges

Donald Blankenship, the chairman of Richmond-based Massey Energy, probably did not intend to produce a Supreme Court case when he shelled out $3 million to help elect a judge. But that was the result.

After Brent Benjamin was elected to the West Virginia Supreme Court of Appeals with Blankenship's help, he twice joined a 3-2 majority in overturning a $50 million judgment against Massey. A jury had awarded the money to the owner of a competing company who alleged Massey had used fradulent business practices to drive the company into oblivion. The company, Harman Mining, had asked Benjamin to recuse himself. He refused.

It has long been accepted that due process requires a judge to step aside if he has a clear conflict of interests in a case before him. A narrow majority on the U.S. Supreme Court has ruled that the facts in Blankenship's case were so extreme they rose to the level of unconstitutionality.

The case raises questions about the interplay between democracy and the judiciary. Politicians are expected to fight for the interests of their constituents. Judges must serve higher values, including constitutional law and abstract notions of justice.

The ruling does not address broader questions about the wisdom of electing judges, which 38 states do in some form or another. Even absent the campaign-finance angle, popular election may make it harder for judges to oppose the tyranny of the majority when they are, after all, beholden to the majority. Legislative appointment, on the other hand, may raise questions of partiality in other ways -- as it has time and again in Virginia.

No system will produce perfection. But some are better than others. The impartial application of justice benefits from being insulated against the tempests of partisan politics and populist passions. In Virginia, we long have advocated for an independent commission that would make merit-based nominations to the bench for legislative approval. Perhaps the Massey case will lead other states to consider the virtues of such a system as well.