The decision in the Massey coal case seems unworkable to me. Media reports on the case quote Judge Kennedy, the swing vote, as saying, “When a person with a personal stake in a particular case had a significant and disproportionate influence” in putting the judge on the case, that judge would have to step aside. This offers very little guidance for the sake of stare decisis. So if oil and gas executive A lavishes campaign contributions upon Judge B, and Judge B rules for the oil company, the question is, at what point do the contributions violate the right of a party to a fair trial? There is no clear answer to the question – or, to put it another way, the only answer is the one that applies to obscenity cases: “I know it when I see it.”
I don’t see how this is going to work in practice. “Significant and disproportionate influence” is a wide-open guideline. In the Massey coal case, the amount of the financial assistance was around $3 million. What if it were $500,000? $50,000. In Texas, PACs can give judges up to $300,000. Is that “significant and disproportionate influence,” when it is one vote on a nine-member court? Would the result be different if the same amount were involved in a case on a three-judge court of appeals panel?
I think the Court has entered a political thicket here. It has opened the door for any decision to be challenged when a judge has taken a large amount of campaign cash and ruled according to his contribution list. And, of course, the only people who can decide whether a judge committed a foul are the judges themselves. There is no way for a reviewing court to determine how much money it takes to buy a judge’s vote. As much as I would like to see TLR’s influence on the court reduced, I don’t think either the organization or the judges have anything to fear from this case.