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High court opens a new era of judicial recusal

By Diane Karpman

Diane Karpman

The majority of the U.S. Supreme Court explained that their decision in Caperton v. A.T. Massey Coal Co., No. 08-22, June 8, 2009, is exceptional and based on extreme facts. However, it’s difficult not to believe that the dissenters have a point, and that a new arrow of constitutional magnitude has been placed in the judicial recusal quiver.

In Caperton, the CEO of a coal company gave the legal limit ($1,000) to a judge’s campaign, and then donated about three million more to a 527 group (unregulated political group organized to influence elections) for television, radio and direct mailers to assist in his candidate’s election. The CEO’s company had a $50 million adverse verdict, and he wanted to guarantee that “his” judge would hear the appeal. The other side sought disqualification, relying on the due process clause of the Constitution.

Judicial recusal raises paradoxical issues. The person you are saying can’t make the decision is exactly the person who will decide the recusal motion. Brent Benjamin, the judge in Caperton, after deliberating with himself, found that he was unbiased. Sidebar to bench officers: if you are the beneficiary of a $3 million political donation, don’t even suggest that you are unbiased; grant the recusal. Logically, no one can defend the judge’s failure to recuse himself. Now, we have a new, undefined, unlimited “probability of bias” standard, which is conceivably applicable in the 39 states that have judicial elections.

Chief Justice John Roberts, in the dissent, raised 40 questions regarding the “probability of bias” standard: “At the most basic level, it is unclear whether the new probability of bias standard is somehow limited to financial support in judicial elections, or applies to judicial recusal questions more generally.” In an independent dissent, Justice Antonin Scalia, who has rarely seen a meritorious recusal motion, was concerned that Caperton will add to the “vast arsenal of lawyerly gambits.” He scorned lawyers trying to find neutral judges for their client’s cases. Remember when he went duck hunting with Dick Cheney?

Certain core American values transcend partisan politics. Money should not influence judicial decisions. Judicial campaigns are becoming far too costly, with trial lawyers and business interests investing vast sums to elect “sympathetic” judges. In California, the specter of Rose Bird is always present.

Money is “the mother’s milk of politics” (Jesse Unruh). You can bet that numerous well-financed groups are gearing up to launch massive media blitzes costing millions of dollars in support of Judge Sonia Sotomayor’s nomination. The idea of Caperton is that judges are somehow beholden to those who engage in independent speech on their behalf. If that is correct, these liberal groups better be careful or Sotomayor may have to recuse herself from their future litigation or face recusal motions.

Incidentally, John Grisham indicated in an interview that Caperton was the inspiration for his novel, The Appeal.

• Diane Karpman, a legal ethics expert, can be reached at 310/887-3900 or at

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