The Judicial Recusal Case

The National Law Journal has a nice explanation of the pending Supreme Court case on judicial recusal here.  In essence, a West Virginia Supreme Court justice refused to recuse himself from a case in which a corporate litigant's president had previously donated $3 million dollars to the judge's judicial campaign. The issue is whether the judge's failure to recuse himself violated the due process clause.

NYU's Stephen Gillers is quoted in the article and has it exactly right.  Here's the relevant excerpt:

Ethics scholar Stephen Gillers of New York University School of Law said he finds the case "so easy" that it's a "nonstarter." [Justice] Benjamin, he said, received two-thirds of his contributions via Blankenship [the president of the company]. The total support was $3 million with $50 million at stake in the appeal. "I can't imagine there's a litigant in the country who would feel no alarm if he was facing an adversary with the same numbers," he said. "That's the test the court laid down for due process in Aetna [Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986)]. That's the beginning and ending for me. The appearance of justice is just as important as justice. It's easily met here."

That seems to cut to the core of it.  I don't care whether the West Virginia judge thought that he could be unbiased.  Personally, I don't think that such a belief would have been reasonable, unless the judge had the objectivity of Ronald Dworkin's Hercules.  But even if the judge had such herculean objectivity, the appearance of bias is so strong here that the judge's failure to recuse himself has to violate our sense of procedural fairness.  As Professor Gillers suggests, all you have to do is ask yourself whether a litigation outcome would seem fair to you if your adversary contributed $3 million to the judge who was presiding over your case. 

Even though this case seems fairly clear, the challenge for the Court is to come up with a due process test that can be applied in future cases.  The easiest solution is the one that Monroe Freedman mentioned in his comment to this post: rule that judicial elections themselves are a violation of due process.  I don't expect the Supreme Court to buy that argument, but there's a lot to be said for that position.