The transcript of today’s oral argument in the Brent Benjamin-Don Blankenship case before the U.S. Supreme Court has been posted online here.
And here’s some early analysis from SCOTUSblog:
TuggedÂ between a sense that a constitutional ruling on judgesâ€™ duty to take themselves out of cases if bias isÂ suspected should provide very clear guidance, and aÂ sense that it might be written only to apply inÂ the most extreme factual scenarios, the Supreme CourtÂ set itself a difficult task as it moves toward a ruling in Caperton, et al., v. A.T. Massey Coal Co., et al. (08-22), heard Tuesday during an intense hour of exchanges with two harried advocates.
While Justice Anthony M. Kennedy may wind up with the deciding vote in a Court plainly split over the issue, he himself seemed torn between a standard of recusal thatÂ would beÂ precise in scope, and a standard that would be no more specific than â€œan appearance of bias.â€Â And the bloc of Justices whose votes would seem to be necessary to craft any constitutional decision on recusal focused on ways to make it at least fit this particular case, but perhaps no others.Â One of those Justices, John Paul Stevens, remarked at one point: â€œWe have never confronted a case as extreme as this before.â€
It was obvious that Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia were leaning heavily against writing a new constitutional rule on recusal, and it also appeared that Justice Samuel A. Alito, Jr., might wind up at that conclusion, too.
On the other side, Justice Stevensâ€™ seeming perception that something had to be crafted to deal with situations like that involving an elected justice of the West Virginia Supreme Court might well be shared by Justices Stephen G. Breyer,Â Ruth Bader Ginsburg and David H. Souter.