More on Caperton

grisham1In 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.

Continue ReadingMore on Caperton

Bork Reconsidered, Part II

3601327017_cf29db46c31In an earlier post, I compared the nominations of Judge Sonia Sotomayor and Judge Robert Bork in order to make some observations about the role of stare decisis and its relationship to judicial activism.  My argument was that a respect for the wisdom of past practice and a preference for incremental change will allow Judge Sotomayor to avoid being tagged as a radical jurist unworthy of confirmation.  In contrast, Judge Bork had a record that left him vulnerable to such a charge (even if unwarranted).  Also worthy of mention here is Professor David Papke’s earlier recollection of Professor Bork in the classroom.

In the discussion that follows, I will continue to use the Sotomayor/ Bork comparison in order to draw out the manner in which the Supreme Court’s interpretation of the Second Amendment threatens to undermine the very philosophy of constitutional interpretation that is most closely associated with Judge Bork.

Opponents of the Sotomayor nomination have seized on the Second Amendment as an issue with which to attack her.  Portraying her as an opponent of the constitutional right to own firearms is a strategy that will certainly succeed in energizing the base of the Republican Party.  If she rises to the bait during her confirmation hearings, and expresses any skepticism over the correctness of the District of Columbia v. Heller case – striking down the DC handgun ban– then efforts to paint her as a liberal jurist who is out of the mainstream might gain some traction with the public.

Continue ReadingBork Reconsidered, Part II

Justice Roberts Has A Little List

the_mikado1The Supreme Court ruled yesterday in Caperton v. A.T. Massey Coal Company that the Due Process Clause of the United States Constitution is violated by the refusal of a judge to recuse herself when the disproportionate campaign contributions of a litigant on behalf of that judge create a serious, objective risk of actual bias. Rick Esenberg has posted on some of the issues raised by the majority opinion here. For me, the most interesting part of the case was actually the dissent by Justice John Roberts. In it, Justice Roberts objects to the uncertainty that federal judges will encounter as they attempt to apply this constitutional right in future cases with disparate fact patterns. In a bit of theatricality worthy of Gilbert & Sullivan, the Chief Justice’s dissent presents a list of 40 questions that the majority opinion leaves unanswered.

The Chief Justice makes a rather stark assertion: “The Court’s inability to formulate a ‘judicially discernible and manageable standard’ strongly counsels against the recognition of a novel constitutional right.” He cites to Veith v. Jubelirer in support of this statement, which of course held no such thing. In fact, as a plurality opinion devoted to the issue of what constitutes a “political question,” the Veith case is a fairly slender reed upon which to rest such a sweeping proposition.

Continue ReadingJustice Roberts Has A Little List