Recusal as Censorship?

Posted on Categories Judges & Judicial Process, Political Processes & Rhetoric, U.S. Supreme Court

The Supreme Court’s decision on Monday in Caperton v. A.T. Massey Coal Company is interesting for what it may portend and for the methodological dispute between the majority and the dissent.

You know (or I’ll tell you) the basic facts. Massey has an important case before the West Virginia Supreme Court –  an appeal of a $ 50 million verdict against it and in favor of Caperton and others. Massey’s CEO makes independent expenditures in the amount of $3 million in support of candidate Brent Benjamin. Benjamin wins and so does Massey – by a 3-2 vote with now Justice Benjamin in the majority.

The Supreme Court held, in a 5-4 decision, that Benjamin’s failure to recuse himself violated Caperton’s due process rights. So what’s the problem?

As Chief Justice Roberts argued in dissent, this could be a hard case that makes bad law. Heretofore, the circumstances in which the due process clause might compel a recusal have been fairly limited. The Caperton majority announces a broader right, suggesting that recusal may be compelled when, viewed objectively, a judge is unlikely to be neutral or there is an unconstitutional “potential for bias.”

The question becomes how aggressively this standard will be applied. In the context of this case, the Court identified the controlling principle as requiring recusal when a contributor with a personal stake in a case “had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judges the judge’s election campaign when the case was pending or imminent.”

But is that it? What if the contributor is an interest group, say a business association or the teacher’s union? What if the group is not a party to the case, but has a general interest in or has taken a position on the outcome? What if the alleged problem is not a contributor at all, but a judicial candidate’s announcement, not of how she would decide a particular case, but of her general judicial philosophy or world view?

In Wisconsin, there have been calls for Justices to recuse themselves in just those circumstances. Justice Annette Ziegler has been criticized for failing to recuse herself in a case where an independent group who supported her election was not a party, but had filed an amicus brief. Justice Michael Gableman has been asked to step aside in a criminal matter because he – and groups supporting him – said he was tough on crime. (If that works, there will literally be no one who has ever had a contested race who can sit on a criminal case.)

Both results seem inconsistent with the Court’s precedent in other areas. Independent groups have a right to speak as do judicial candidates. It would seem inconsistent with those cases – and perhaps the very idea of judicial elections – to make recusal the price of speech.

The other interesting feature of the case was the dispute between the majority and the dissent over the need for a clear standard. As is often his wont, Justice Kennedy’s formulation of the basic due process mandate is broad and susceptible of application in a large number of cases. It maximizes judicial discretion. Chief Justice Roberts was sharply critical, listing 40 substantial questions left unanswered by the majority opinion.

3 thoughts on “Recusal as Censorship?”

  1. I don’t have much time just now, and I have not read the opinion yet, but I have to say that from what I’ve heard, the Court is at least approximately correct.

    No one is drafted to be a judge, so the restriction is just one of the burdens you voluntarily accept when you run for the Court.

    More important is the on-going debate about standards of jurisprudence (“restraint” v. “activism”). We all acknowledge that judges can be tempted to rule inappropriately. Given the gravity of that concern, requiring Judges to avoid the mere appearance of impropriety is a compelling State interest. Given the voluntary nature of the job (supra) the burden is not extraordinary.

    Judges are not ordinary people. They have an extraordinary role to play, and their neutrality is not merely “desirable”; it is critical.

    And just to be clear: as I said, I’ve not read the opinion yet, so to whatever extent the Court disagrees with what I just said, I am unaware of that at this time.

  2. My big question is this: what’s to stop an organization that’s frequently involved in litigation either as a party or as an amicus (large insurance company, statewide union, etc.), or involved in an upcoming appeal from donating a large amount of money to a judge/justice up for reelection who is likely to vote against them? Especially in an election where the incumbent is highly likely to win regardless of how much money the opponent raises, this would seem like a sure-fire way to increase odds of success.

    Many of these litigants have the money to pull shenanigans like this. Isn’t this essentially a form of bribery? By giving money to a judge, you force that judge to disqualify him or herself from deciding your case.

  3. Tom K. asks an interesting question with (IMHO) a simple if radical answer. If I am that judicial candidate (incumbent or otherwise) and I am concerned about the problematic donation: Give The Money Back.

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