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U.S. Supreme Court Shouldn’t Overreach In Caperton v. Massey

February 23, 2009

The U.S. Supreme Court will hear oral arguments in Caperton v. Massey next week and editorial writers and columnists have been buzzing with coverage.  (See here, here and here, for examples.)

Here are a few thoughts:

  • This case is not about the constitutionality of judicial elections, and the Court shouldn’t have to address the issue in whatever decision it reaches.  In fact, the Petitioners reinforce this point in their brief:  “Judicial elections are a well-established and constitutionally permissible means of selecting state court judges, and it is certainly not the case that due process requires a judge to recuse himself every time a litigant or attorney contributed to or otherwise supported the judge’s election campaign.”
  • This case is also not about the constitutionality of “527” organizations or limits on contributions to judicial campaigns.
  • What is at issue is simply the standards for judicial recusal and whether these rise to a Constitutionally-protected level of due process in this one instance.  Since the facts of this case are so extreme and unusual, this isn’t the case to issue a general ruling even in the narrow area of recusals.
  • Constitutionalizing or federalizing the process of judicial recusals would just lead to endless litigation and “judge shopping” – both designed to influence the outcome of a case.  As 10 current and former state supreme court justices (including two from Michigan) wrote in their brief,  “Only in rare instances has this Court found that the Due Process Clause of the Fourteenth Amendment overcomes the strong presumption of judicial integrity.”  Even the American Bar Association wrote that this case would already require recusal under its Model Code – meaning no additional standards are necessary.
  • Perhaps the best and fairerst solution is offered in an amicus brief from seven states’ attorneys general.    They write, “Reasonable minds can and will disagree about whether, on the particular facts presented, recusal would have been the better course. And in a way, that is precisely the point.”  The states “are uniquely well-situated to regulate recusal practice in their own courts and (2) have been both vigorous and innovative in doing so.”

The U.S. Supreme Court should leave it up to the states to fashion their own recusal standards, just as they regulate most other aspects of their judicial systems.  There’s no need to concoct a completely new, Federalized recusal system because of the unusual facts of an unusual case.

Posted by Dan Pero in the categories: Judicial Elections, West Virginia

Comments

2 Responses to “U.S. Supreme Court Shouldn’t Overreach In Caperton v. Massey”

  1. Caperton v. AT Massey - Perspectives on the Constitutional Issues « Mediating Certainty on March 4th, 2009 6:24 am

    [...] 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. [...]

  2. Chief Justice Predicts U.S. Supreme Court Overreach Will Erode Confidence In Judiciary | American Courthouse on June 8th, 2009 8:24 pm

    [...] a February post, I wrote that since the particular facts of this case were so extreme and unusual, this wasn’t [...]