The Supreme Court's Opinion on Judicial Recusal Standards

The Supreme Court issued its opinion in the Caperton case this morning in a 5-4 decision.  The Court held (correctly, in my view) that a West Virginia Supreme Court judge's refusal to recuse himself constituted a due process violation.  The Court split along the typical liberal/conservative lines, with Justice Kennedy serving as the deciding vote.

For some of our previous commentary on the case, see here, here, and here.  (Update: Other arguably relevant posts are here, here, and here.)

Comments

[Dennis Tuchler]

How long will it take to do away with selection of judges by contested elections where private donors contribute? I can't see any way to prevent the concept of disproportionally large contribution from morphing into very large contribution and then into substantial contribution.

What about the "Missouri" plan in which a judge is selected by the governor from a list of candidates picked by a committee, and then, every so often, is up for retention in an uncontested election? Assume some group opposes the retention of that judge

and so forth

[Andrew Perlman]

Dennis,

Almost any important Supreme Court decision has a slippery slope potential. If lower courts start slipping down that slope, we can worry. For now, I have no problem with the narrow decision that the Court has issued.

Even if there is no slippery slope, some have expressed a concern that the opinion will lead to a deluge of Caperton motions. I'm skeptical. First, if a case raises Caperton-type concerns, presumably there would be a basis for a DQ motion under state law. If so, Caperton simply gives the moving party another argument in favor of DQ rather than a basis for a motion that had previously been unavailable. Second, given how unusual the Caperton case is, I suspect that Caperton-type arguments will be routinely denied. Accordingly, I think the concerns about slippery slopes and court clogging Caperton motions are overstated.

[Andrew Perlman]

Two more quick thoughts. First, regarding the dissent's 40 questions, I could write up 40 questions of that sort for just about every important civil rights or civil liberties case that has ever been decided. Constitutional decisions often leave more questions than answers, but that fact should not deter judges from issuing rulings that they believe are correct in particular cases.

Second, there is an interesting issue here concerning a judge's ability to self-identify when she is unduly biased. Social science research has repeatedly shown that we have far more biases than we consciously recognize. In light of those implicit biases, it seems to me that there is some value in having an extra layer of inquiry concerning judicial recusal.