Analysis: In search of a limiting principle
on Mar 3, 2009 at 1:25 pm
Analysis
Tugged between a sense that a constitutional ruling on judges’ duty to take themselves out of cases if bias is suspected should provide very clear guidance, and a sense that it might be written only to apply in the most extreme factual scenarios, the Supreme Court 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 that would be precise in scope, and a standard that would be no more specific than “an appearance of bias.” 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. One of those Justices, John Paul Stevens, remarked at one point: “We have never confronted a case as extreme as this before.”
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 Stevens’ 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, Ruth Bader Ginsburg and David H. Souter.
If any one thing was clear from the argument, it was that several of the Justices were wholly unimpressed with the argument — made by counsel Andrew L. Frey of New York. in opposing to a new constitutional rule on recusal — that “the reputation of the judicial system…is not the function of the Due Process Clause to address.”
If the Court is going to do anything at all in this case about curbing judicial bias, it would only be through the Due Process Clause. It has no authority to superintend the state judges’ ethical codes, or their breach of such codes.
After Frey had attempted to dismiss that Clause as the foundation for any recusal mandate, Justice Stevens asked: “You don’t think the community’s confidence in the way judges behave is an important part of due process?” Frey said no. but then Justice Kennedy commented: “But our whole system is designed to ensure confidence in our judgments…And it seems to me litigants have an entitlement to that under the Due Process Clause.”
It was almost as clear that a majority of the Court was not taken with Frey’s further elaboration, that the Constitution could never embrace an “appearance of bias” as the standard for recusal. Justice Kennedy met one such comment with this remark: “Why is appearance never constitutional? Why should that be?…The appearance standard has much to recommend it.”  (Kennedy also said that “we’re asking what substance we can give to the constitutional protection,” thus broadly hinting that there might well be a constitutional mandate for recusal for bias, if it could only be defined.)
Frey’s opponent, Theodore B. Olson of Washington, pleading for what he insisted was a reaffirmation of an existing recusal standard”(“probability of bias”), drew some critical questions and comments from Kennedy about that approach. “I need some more specific standards within which to fit this case,” the Justice said.
Kennedy also gave voice to what seems to be the concern of many Justices about the whole idea of crafting a new recusal approach He told Olson that “all of us know that a ruling in your favor means that law and motion practice could change drastically in states all across the country. Disqualification for bias will now become a part of the pretrial process…”
The probability standard, though, did draw some support from Justice Stevens, who suggested that it would be no more difficult for courts to apply than the “probable cause” standard for searches and arrests under the Fourth Amendment.
But Justice Scalia, among his many thrusts against further development of a recusal standard, was a sharp comment that “we can’t run a system on such a vague standard” ad “probability of bias.” Scalia was equally dismissive of an “appearance of bias” standard, saying it “is wonderfully ratchetable…I personally don’t favor a constitutional rule that is a sliding scale like that.”
Chief Justice Roberts, also appearing hostile to a new constitutional approach, posed a series of hypotheticals to Olson, each of which appeared aimed at showing that the “probability” standard would lead to an unending series of complications as courts tried to administer it case by case. That seemed to be Justice Alito’s concern, too.
Justice Breyer tried to construct a word picture of what a workable standard of recusal might be, without pushing “the envelope” of the Due Process Clause too far. He suggested that one could catalog all of the reasons why the case of the heavily subsidized judicial candidate in West Virginia was “extreme,” and then conclude that those factors make the case “way outside the envelope of the Due Process Clause.” If an opinion of the Justices said that, and no more, Breyer wondered rhetorically, “What terrible mess will the Court get into if they write just that?” It was clear he saw no mess at all.
Justice Souter, along with Justice Stevens, also used the word “extreme” to describe the situation in this case — a just sitting on a case and casting the deciding vote after getting elected with the help of $3 million in direct or indirect support from a businessman whose company was directly benefiting from the ruling.
(Justice Clarence Thomas, following his usual pattern, asked no questions and made no comments.)
