Sustained Outrage

Caperton, recusal and judicial elections

benjaminap.jpgInteresting column by Adam Liptak in today’s New York Times, in which he observes that the justices of the U.S. Supreme Court may be a little bit better at interpreting precedent than predicting what impact their rulings may have in the future.

Liptak mentioned in passing the Caperton case, in which a 5-4 majority ruled in June that West Virginia Supreme Court Justice Brent Benjamin (pictured) should have stepped down from a case involving the company of major campaign donor Don Blankenship. (See previous coverage here, here and here.) Liptak wrote:

[D]ire prediction sometimes seems the court’s default rhetorical mode.

Chief Justice John G. Roberts Jr., dissenting from a decision about judicial disqualification in June, said the majority opinion would “inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be.”

That overstated the decision’s likely effect, Penny J. White, a former judge who is now a law professor at the University of Tennessee wrote in The Harvard Law Review in November. She said there would be no “onslaught of judicial recusal motions,” basing her view “on my experience as a state trial and appellate judge and my interaction as a judicial educator with judges from all 50 states.”

I haven’t seen any academic studies on recusal in the wake of the court’s ruling. Anecdotally, it doesn’t appear that there has been a deluge of “Caperton motions” in the courts that I cover. I did take note when Kanawha Circuit Judge Jennifer Bailey voluntarily stepped aside from the criminal case against Natasha Light, the passenger in the truck involved in a high-speed chase the night Charleston Police officer Jerry Jones was killed. Bailey’s clerk, Lori Teel, is Jones’ sister.

(Readers, feel free to bring any cases to my attention if I’ve missed the boat on recusal motions.)

I’m also curious to see if groups with defined agendas have been busy donating money to justices and judges they would want off of their cases, but inexplicably, the Campaign Finance Center section of the Secretary of State’s Web site doesn’t currently allow the public to review campaign finance reports online.

Prof. White’s analysis is worth reading. For one thing, she gives a very clear explanation of the majority’s decision in the Caperton appeal:

The justice system must not only be fair, it also must appear fair. Thus, the majority evaluated the circumstances from multiple perspectives, considering the impressions of the parties, the lawyers, the general public, and the judge. Taking a systemic approach, the majority regarded the way the judicial action appears to an objective outsider as more important than whether the judge personally believes she can be impartial. A decision rendered by an apparently biased judge is unacceptable, even if the decision is legally correct and the judge is not, in fact, actually biased.

When viewed from this perspective, the purpose of recusal motions is to enforce the right to a fair trial, thereby assuring the integrity of the justice system. Recusal motions are not pejorative. A lawyer who requests judicial recusal is alleging only that the circumstances suggest to neutral observers a probability of bias; he or she is not accusing the judge of any wrongdoing.

pennywhite.jpgWhite, who also served on Tennessee’s Supreme Court, believes that judges are perfectly capable of applying Caperton and making good (and good-faith) recusal decisions. In part, the correct inquiry for a judge to make is not whether he or she can be impartial, but whether or not a member of the public would perceive the judge to be biased.

The questions concerning cause and effect and the duration of a Caperton claim can be resolved by shifting appropriately from the perspective of the challenged judge to that of an objective observer. The due process deprivation occurs when — and persists so long as — the probability of bias exists. The deprivation does not depend on whether the probability of bias influences the decision or leads the court to an incorrect result. The taint flows from the judge’s participation in the case; it does not depend on the judge’s succumbing to the tempting influence. Therefore, a due process deprivation occurs despite a correct decision or an affirmance by a neutral appellate panel.

This point — that a judge need not “succumb to the tempting influence” in order for recusal to be warranted — didn’t seem to ever register with Justice Benjamin, who wrote in a 58-page concurring opinion in July 2008 after he joined (for the second time) the 3-2 majority in overturning the Caperton verdict:

The most important factors therefore affecting the public’s perception of actual justice in this Court necessarily are the actual decisions of this Court, and its members, over time, the professional demeanor of this Court’s members, and the quality of the written opinions and orders which we produce in specific cases.

For White, the bigger issue, and one which the U.S. Supreme Court failed to address in Caperton, is whether judicial elections are ultimately compatible with the due process clause of the 14th Amendment:

The Supreme Court in Caperton missed an opportunity to kindle a needed debate on how to reconcile the mandates of the Due Process Clause with the escalating effects of money and influence on state judicial elections. Unwilling to confront that prospect, the Court, at best, plugged a gaping hole with a tiny straw…. By declining to recognize a more rigorous due process limitation, the Court relinquished the responsibility for curbing the continued growth of interest-controlled judiciaries to the states.

She continued:

Although the Caperton majority reached the right result, its emphasis on the extreme facts of the case obscures the underlying problem and ultimately neglects the more profound constitutional dimension: judicial elections threaten the basic promise of fundamental fairness. If we are serious about providing a fair trial before a fair tribunal, then we should recognize forthrightly that the Due Process Clause perhaps should have a nullifying, or at least a limiting, effect on judicial elections.

Despite clear documentation that judicial elections erode public trust and confidence in the judiciary, we persistently avoid a discussion about the constitutionality of judicial elections and view such a discussion as counterproductive because surveys suggest that most Americans want to elect their judges. But it is equally true that most Americans (arguably all Americans) want fair, independent, and impartial courts. What has led us to this juncture at which we consistently endorse the importance of elections over other, core constitutional rights?