In a comment following Ed Fallone’s post on Chief Justice Robert’s little list (actually it as a rather long list), he argues that there is little in the text, structure and history of the  Bill of Rights that might inform the question of when the due process clause requires a judge to recuse herself because of the potential for bias associated with campaign contributions:

It may very well be that something like “judicial bias” is undefinable without reference to some background principles derived from the constitutional design. Unfortunately, I believe that the direct election of judges was a reform associated with Jacksonian theories of democracy, and therefore the relevant state laws post-date the Bill of Rights. Without any relevant evidence of original intent on the question of when a judge is tainted by campaign contributions, I am willing to rely on Mike McChrystal’s common sense approach: the perception of bias in this case was too obvious for the Court to ignore.

He’s right about state judicial elections. If I recall correctly, they began with Mississippi in 1832. I agree that Mike McChrystal does capture something important about why the majority acted in the way it did, but I think that it might be not simply a judicial gag reflex. I think there may be some instruction to be found in the structure of the constitution. I’m still thinking on it, but it might go something like this.

The Caperton majority was concerned with the potential for bias when a  person with a case before the court “had a significant and disproportionate influence in placing the judge on the case” through campaign contributions or direction of the judge’s campaign.

Why should the potential for bias be limited to the context of judicial elections? The potential for bias presumably arises from the “debt of gratitude” on the part of a judge that might “lead him not to hold the balance nice, clear and true.” A man should not, the majority said, choose the judge in his own case.

But, of course, a man (or, in some cases, a woman) chooses the judge in his (or her) own case all the time.  The President (or the Governor in appointive states) chooses judges that proceed to sit on cases in which the administration has a vital interest. George W. Bush had much more influence on the judicial fortunes of Chief Justice John Roberts than Don Blankenship had on those of Justice Brent Benjamin. Might he have a debt of gratitude that might prevent him from holding the balance nice, clear and true in a case raising, I don’t know, whether waterboarding is prohibited by 18 U.S.C. § 2340?

One answer would be to say that the Constitution itself provides for the appointment of judges by the executive. While there is no logical inconsistency between executive appointment and recusal in cases in which the appointing executive is a party or has – let’s say – an extraordinarily strong interest, the two ideas rest uneasily together. It may be that we ought not presume that the Bill of Rights was intended to disable recently appointed judges from sitting on cases involving –  or of great importance to – the appointing executive.

But might not this tell us something about the nature of the due process guarantee? Does it suggest that there was not and could not have been an understanding that due process is offended by the mere fact that a litigant had a key role in the judge’s elevation to the bench?

This may not mean that the outcome in Caperton was wrong. One could argue that the executive, as opposed to a private party, does not expect any particular result but that seems to beggar reality.  Executives most certainly choose judges based on expectations regarding the way in which those judges will approach cases. FDR did not suggest his court packing plan simply because more justices would improve his odds.

But maybe we can say that it would be a rare case in which the executive appointed a judge seeking a particular outcome in a specific case. She might want judges who are tough on crime or empathic. She may seek originalists or those committed to democratic constitutionalism, but she is unlikely to be looking for someone who will rule for the state in a particular case. This is not to say that this could not happen, it’s just that we ought not presume it will be so and call the entire process into question.

If that’s true then maybe Caperton was rightly decided. But it may also suggest a limit on Caperton. Just as the President or, in some states, the Governor is constitutionally empowered to select judges, so are citizens in states with judicial elections constitutionally empowered to select judges -including through participation in the electoral process by making permitted campaign contributions and speaking on matters of public import (see Wisconsin Right to Life v. FEC).

On this view, Caperton ought not to be expanded to cases in which the contributions or expenditures in question were not made by a party to a particular case pending or imminent but by persons who are looking to  elect judges thought to have preferable philosophical dispositions. In other words, it should be limited to the particular principle that the court said it was applying to Caperton’s case and that its broader endorsement of a due process right to recusal in cases presenting the potential for bias ought not to be expanded.