Caperton v. AT Massey – Perspectives on the Constitutional Issues

The United States Supreme Court of Appeals heard oral arguments today in Caperton v. A.T. Massey, No. 08-22 (click here for the argument transcript); the facts of which are well known and will not be repeated here.  Instead, in this post, I will share with my readers different perspectives offered by bloggers and editorial writers concerning today’s oral argument.  

Perhaps the most significant question to be resolved by the Supreme Court is not whether Justice Benjamin should have recused himself in this particular case, but whether the Supreme Court will fashion a ruling finding that his failure to recuse arose to the level of a violation of the plaintiff’s due process rights under the United States Constitution.  

Some commentators believe this approach — which would federalize the judicial recusal process as opposed to leaving it to the states — would be overreaching.  Author Dan Pero made this argument last week in an article appearing in the American Courthouse blog.

In another blog commentary, author Andrew Grossman, in a posting at, opines that a broad ruling finding that an appearance of impropriety violates the Due Process Clause of the Fourteenth Amendment could result in the end of judicial elections:  

Thus, the odd question presented to the Supreme Court: Whether a judge’s mere appearance of impropriety, something usually left to state ethics rules and political processes, somehow violates the Due Process Clause of the Fourteenth Amendment.

The way the Court answers that question could go a long way toward ending judicial elections in the states–a long-time goal of “reformers” who favor undemocratic selection committees dominated by ABA and trial-bar apparatchiks. Could there be any other end when any sizable campaign donation–perhaps just a few thousand–guarantees recusal? (A cheap investment for some litigants, quips a colleague.)

Of course, the process for selecting judges is already under review and debate here in West Virginia, as noted in my earlier post concerning Governor Manchin’s appointment of a new commission to study the West Virginia judicial system.  So, if this prediction is right, those in West Virginia who oppose changes to the democratic election of judges could very well feed the reformer’s fire by seeking Justice Benjamin’s recusal in this particular case.  

If there was any question about the importance of this case, one need only consider the competing views expressed during today’s oral argument. 

In an indication as to where he is headed, Justice Stevens referred during today’s proceeding to what has become an old adage (first coined by then Justice Potter Stewart) about pornography:  “We have never confronted a case this extreme before.  This fits the standard that Potter Stewart articulated when he said ‘I know it when I see it.'”  On the other hand, Justice Scalia was just as forceful in stating, “We’re being urged to adopt out of nowhere a new standard of  probability of bias.  It’s not in the Constitution.”  

A very detailed analysis of the competing views, including Justice Kennedy’s apparent desire to craft a limited ruling, can be found in a posting by Lyle Denniston at the SCOTUSBLOG, Analysis: In search of a limiting principle.  

Newspapers across the country have also weighed in on the case.  

In an editorial, The New York Times said:  

“This case offers the nation’s top court the opportunity to make clear that judges who receive outsize campaign contributions have a duty to recuse themselves. Although not all contributions implicate due process, Mr. Blankenship’s multimillion-dollar quest to tilt the scales of justice surely does. It is vitally important for the Supreme Court to say so.”  

In another editorial, The Washington Post, while commenting that this case illustrates why the election of judges is a bad idea, offers a more pragmatic observation about the difficulty facing those Supreme Court Justices who want to order Justice Benjamin’s recusal without opening the proverbial litigation flood gates:

“As a matter of law, this is a more difficult case than it may appear. If the court rules that Mr. Caperton’s rights were violated, it may soon find itself in a thicket of related cases involving possible conflicts of interest by judges. Maybe $3 million is obviously enough to create the appearance of a conflict, but what about $100,000? In an amicus brief, the Conference of Chief Justices suggested that the total sum of money and timing, among other factors, should be considered in determining recusals. That approach makes sense, but it would be only the beginning of the debate.”

My prediction?  I have none.  Like most lawyers who have taken cases on appeal, I have learned to never make a prediction about how an appellate court will rule notwithstanding prior rulings or comments made during oral argument.  Like everyone else, I will wait until the Court speaks through its written opinion or opinions.

As always, to hire me as a mediator in a case, or just to learn more about my mediation practice areas, click here “Mediating with Keith Jones.”

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