Relinquished responsibilities

Harvard Law Review

Volumn 123, Issue 1, 2009, Pages 120-151

  White, Penny J ^a  

^a UNIVERSITY OF TENNESSEE   (United States)

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EID: 76349108805     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (392)

1. -536 U.S. 765, 782 (2002).
2. "Jesters do oft prove prophets." WILLIAM SHAKESPEARE, KING LEAR act 5, sc. 3, 1. 83 (Barbara A. Mowat & Paul Werstine eds., Folger Shakespeare Library 1993) (1623).
3. -536 U.S. at 782. Justice Scalia was challenging Justice Ginsburg's dissent.
4. See id. at 813-17 (Ginsburg, J., dissenting);
5. see also id. at 787-88 (majority opinion) (stating that although opposition to judicial elections may be "well taken,"
6. id. at 787, states may not "leav[e| the principle of elections in place while preventing candidates from discussing what the elections are about,"
7. id. at 788).
8. -129 S. Ct. 2252 (2009).
9. See Avery v. State Farm Mut. Auto. Ins. Co., 547 U.S. 1003 (2006) (mem.) (denying certiorari in case raising issue of judicial recusal in light of campaign contributions and expenditures from party);
10. Dimick v. Republican Party of Minn., 546 U.S. 1157 (2006) (mem.) (denying certiorari in case invalidating restrictions on partisan political activity by candidates for judicial office).
11. -536 U.S. at 788.
12. Rachel P. Caufield, The Changing Tone of Judicial Election Campaigns as a Result of White, in RUNNING FOR JUDGE: THE RISING POLITICAL, FINANCIAL, AND LEGAL STAKES OF JUDICIAL ELECTIONS 34 (Matthew J. Streb ed., 2007).
13. DEBORAH GOLDBERG ET AL., THE NEW POLITICS OF JUDICIAL ELECTIONS 2004: How SPECIAL INTEREST PRESSURE ON OUR COURTS HAS REACHED A "TIPPING POINT" - AND HOW TO KEEP OUR COURTS FAIR AND IMPARTIAL (Jesse Rutledge ed., 2005), available at http://www.gavelgrab.org/wp-content/resources/ NewPoliticsReport2004.pdf;
14. Deborah Goldberg, Interest Group Participation in Judicial Elections, in RUNNING FOR JUDGE: THE RISING POLITICAL, FINANCIAL, AND LEGAL STAKES OF JUDICIAL ELECTIONS, supra note 7, at 73.
15. See GOLDBERG ET AL., supra note 8;
16. JAMES SAMPLE ET AL., THE NEW POLITICS OF JUDICIAL ELECTIONS 2006: How 2006 WAS THE MOST THREATENING YEAR YET TO THE FAIRNESS AND IMPARTIALITY OF OUR COURTS -AND HOW AMERICANS ARE FIGHTING BACK (Jesse Rutledge ed., 2007), available at http://www.gavelgrab.org/wp-content/resources/ NewPoliticsofJudicialElections2006.pdf;
17. Chris W. Bonneau, The Dynamics of Campaign Spending in State Supreme Court Elections, in RUNNING FOR JUDGE: THE RISING POLITICAL, FINANCIAL, AND LEGAL STAKES OF JUDICIAL ELECTIONS, supra note 7, at 59.
18. The American Judicature Society maintains comprehensive information on state judicial selection, including details on selection methods, reform efforts, and diversity of the bench.
19. See American Judicature Society, Judicial Selection in the States, http://www.judicialselection.us (last visited Oct. 3, 2009).
20. See SAMPLE ET AL., supra note 9.
21. One-fifth of the members of some Brazilian courts are chosen by an alternative method. CF. [Constitution] art. 94 (Braz.), translated in CONSTITUTION OF THE FEDERATIVE REPUBLIC OF BRAZIL 74 (Istvan Vajda et al. trans., 2002) ("One-fifth of the seats of [these courts] shall be occupied by members of the Public Prosecution . . . and by lawyers of notable juridicial learning and spotless reputation . . . nominated in a list of six names by the entities representing the respective classes . . . [and appointed by the] Executive Power . . . ."). See generally
22. Keith S. Rosenn, Judicial Reform in Brazil, NAFTA L. & BUS. REV. AM., Spring 1998, at 19.
23. CF. art. 93(1) (Braz.), translated in CONSTITUTION OF THE FEDERATIVE REPUBLIC OF BRAZIL, supra note 12, at 73 (providing for "admission into the career, with the initial post of substitute judge, by means of a civil service entrance examination of tests and presentation of academic and professional credentials").
24. For a short description of Brazil's constitutional history, see Keith S. Rosenn, Federalism in Brazil, 43 DUQ. L. REV. 577, 577-588 (2005).
25. See generally Herbert M. Kritzer, Law is the Mere Continuation of Politics by Different Means: American Judicial Selection in the Twenty-First Century, 56 DEPAUL L. REV. 423, 431 (2007) (explaining that "[t]he United States is almost unique in its use of elections in the judicial selection and retention process" with only Switzerland and Japan also electing some judges).
26. The translation from Portuguese is "thank you very much." AMELIA P. HUTCHINSON & JANET LLOYD, PORTUGUESE 194 (2d ed. 2003).
27. See, e.g., Robert Barnes, Court Ties Campaign Largess to Judicial Bias, WASH. POST, June 9, 2009, at A1;
28. Joan Biskupic, Court Says Judges Must Avoid Appearance of Bias with Donors, USA TODAY, June 9, 2009, at 2A;
29. The Caperton v. Massey Case: Not for Sale, ECONOMIST, June 13, 2009, at 36;
30. Adam Liptak, Justices Issue Recusal Rule for Judiciary, N.Y. TIMES, June 9, 2009, at A1;
31. David G. Savage, Judges Can't Be on Cases Involving Own Big Donors, High Court Rules, L.A. TIMES, June 9, 2009, at A1o;
32. Tony Mauro, Supreme Court Issues Landmark Ruling on Judicial Recusal, NAT'L L.J., June 8, 2009, http://www.law.com/jsp/article.jsp?id=1202431300835;
33. Posting of Nathan Koppel to The Wall Street Journal Law Blog, http://blogs.wsj.com/law/2009/06/08/massey-coal-ruling-getting-thumbs-up-in- judicial-circles (June 8, 2009, 14:47 EDT).
34. See Editorial, Judges and 'Bias': The Supremes Trample on State Courts, WALL ST. J., June 9, 2009, at A18.
35. Compare Sean Parnell, Don't Chill Political Speech, USA TODAY, Mar. 3, 2009, at 10A,
36. with Editorial, Mining Case Shows Sooty Side of Big-Money Judicial Elections, USA TODAY, Mar. 3, 2009, at 10A.
37. See, e.g., Larry Dubin, Disqualification Rules Serve Justice, DETROIT NEWS, June 11, 2009, at 4B;
38. Carl Hiaasen, Judges and Justice Should Not Be for Sale, MIAMI HERALD, June 14, 2009, at 1L;
39. Waldo Proffitt, Keeping the Judges Honest, HERALD TRIB. (Sarasota, Fla.), June 20, 2009, at A13;
40. Editorial, Raising the Bar, L.A. TIMES, June 9, 2009, at A18;
41. Eliza Newlin Carney, A Win for Fairer Courts, NAT'L J. ONLINE, June 15, 2009, http://www.nationaljournal.com/njonline/rg-20090615-7680.php.
42. From Justice Scalia's opening question, posed before petitioner's counsel had spoken three dozen words, it was apparent that the Justices would disagree. After his introduction, petitioner's counsel began: "A fair trial in a fair tribunal is a fundamental constitutional right. That means not only the absence of actual bias, but a guarantee against even the probability of an unfair tribunal. In short -" Justice Scalia interjected, "Who says? Have we ever held that?" Transcript of Oral Argument at 3, Caperton, 129 S. Ct. 2252 (2009) (No.08-22), available at http://www.supremecourtus.gov/oral- arguments/argument-transcripts/08-22.pdf.
43. See THE UDANA & THE ITIVUTTAKA [INSPIRED UTTERANCES OF THE BUDDHA & THE BUDDHA'S SAYINGS] 81-84 (John D. Ireland trans., 2d prtg. 2007). The Indian fable was the basis for John Godfrey Saxe's poem The Blind Men and the Elephant.
44. See JOHN GODFREY SAXE, The Blind Men and the Elephant, in THE POETICAL WORKS OF JOHN GODFREY SAXE 111, 111-112 (Boston, Houghton, Mifflin & Co. 1882) (1868).
45. SAXE, supra note 21, at 111.
46. One man, touching the elephant's side, concluded that the elephant "is very like a wall"; the second, touching the tusk, concluded that the elephant is like a spear; the third, touching the trunk, concluded that the elephant is like a snake; the fourth, touching the knee, concluded that the elephant is like a tree; the fifth, touching the ear, concluded that the elephant is like a fan; and the sixth man, touching the tail, concluded that the elephant is like a rope. Id. at 111-112
47. Id. at 112.
48. Chief Justice Roberts's dissenting opinion was joined by Justices Scalia, Thomas, and Alito. Caperton, 129 S. Ct. at 2267 (Roberts, C.J., dissenting). Justice Scalia also wrote a short, separate dissenting opinion. Id. at 2274 (Scalia, J., dissenting). This Comment uses the phrases "the dissenting opinion," "the dissent," or "the dissenters" to refer to the Chief Justice's dissenting opinion and the three Justices who joined it. When the Comment refers to Justice Scalia's dissenting opinion, it does so specifically.
49. Id. at 2265 (majority opinion).
50. See id. at 2272 (Roberts, C.J., dissenting) ("[I]nability to formulate a 'judicially discernible and manageable standard' strongly counsels against the recognition of a novel constitutional right."
51. (quoting Vieth v. Jubelirer, 541 U.S. 267, 306 (2004) (plurality opinion)));
52. id. at 2275 (Scalia, J., dissenting) ("Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not.").
53. See id. at 2274 (Roberts, C.J., dissenting).
54. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 162-163 (1951) (Frankfurter, J., concurring) ("The requirement of 'due process' is not a fair-weather or timid assurance. It must be respected in periods of calm and in times of trouble .... Due process is not a mechanical instrument. It is not a yardstick. ... It is a delicate process of adjustment inescapably involving the exercise of judgment by those whom the Constitution entrusted with the unfolding of the process.").
55. Caperton, 129 S. Ct. at 2269-2272
56. I have suggested that White was driven by the distorted perspective of life-tenured Justices unfamiliar with the realities of state judicial campaigns and insensitive to the effects that those campaigns have on state courts' integrity and legitimacy. Penny J. White, A Matter of Perspective, FIRST AMENDMENT L. REV. 5, 13-14 (2004). Based on due process standards, I urged lawyers to seek recusal of judges who had accepted campaign contributions from parties or organizations or who had curried the favor of special interest groups by professing adherence to the groups' views.
57. Id. at 78-86 ("If the cases are bound by their facts, then a violation of due process, based on judicial bias, will rarely be found. . . . But if the underlying themes espoused in those cases may be applied generally to much different facts, then due process violations based on judicial bias should be found in the post-White landscape far more frequently."
58. Id. at 82, 85.).
59. Caperton, 129 S. Ct. at 2257.
60. In re Murchison, 349 U.S. 133, 136 (1955).
61. Tumey v. Ohio, 273 U.S. 510, 532 (1927).
62. Caperton, 129 S. Ct. at 2265.
63. -273 U.S. 510.
64. -349 U.S. 133.
65. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986).
66. Caperton, 129 S. Ct. at 2259 ("As new problems have emerged . . . the Court has identified additional instances which, as an objective matter, require recusal.");
67. id. at 2262 ("This problem arises in the context of judicial elections, a framework not presented in the precedents we have reviewed and discussed.").
68. Id. at 2261 (omission in original)
69. (quoting Tumey, 273 U.S. at 532) (internal quotation marks omitted).
70. Id.
71. (quoting Murchison, 349 U.S. at 136) (internal quotation marks omitted).
72. Id. at 2263-2264
73. See id. at 2263
74. (citing Lavoie, 475 U.S. at 825;
75. Mayberry v. Pennsylvania, 400 U.S. 455, 465-66 (1971);
76. Tumey, 273 U.S. at 532).
77. Id.
78. (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)) (internal quotation mark omitted).
79. See THOMAS JEFFERSON, AUTOBIOGRAPHY (1821),
80. reprinted in 1 THE WRITINGS OF THOMAS JEFFERSON 1,121 (Andrew A. Lipscomb ed., 1903) ("It is not enough that honest men are appointed Judges. All know the influence of interest on the mind of man, and how unconsciously his judgment is warped by that influence.").
81. See Caperton, 129 S. Ct. at 2264 (stating that when the risk of actual bias "is sufficiently substantial ... it 'must be forbidden if the guarantee of due process is to be adequately implemented'"
82. (quoting Withrow, 421 U.S. at 47)).
83. See id. at 2259-60
84. (relying on Lavoie, 475 U.S. 813;
85. Gibson v. Berryhill, 411 U.S. 564 (1973);
86. Ward v. Vill. of Monroeville, 409 U.S. 57 (1972);
87. Tumey, 273 U.S. 510).
88. See id. at 2261-62
89. (discussing In re Murchison, 349 U.S. 133 (1955), in which a "conflict arising from [a judge's] participation in an earlier proceeding,"
90. Caperton, 129 S. Ct. at 2261, created a potential for bias requiring disqualification).
91. Id. at 2260
92. (quoting Gibson, 411 U.S. at 578-579 (holding that due process was violated by a procedure wherein members of a state board of optometry, which determined license revocations, stood to personally benefit if licenses were revoked)).
93. Id. The fundamental right to a fair trial before a fair tribunal has been applied to judges, quasi-judicial officers, arbitrators, and administrative boards and agencies.
94. See, e.g., Gibson, 411 U.S. at 579 (administrative agencies);
95. Ward, 409 U.S. at 57-58, 62 (mayor who performs judicial and executive functions);
96. Commonwealth Coatings Corp. v. Cont'l Cas. Co., 393 U.S. 145, 149-150 (1968) (arbitrators under United States Arbitration Act).
97. ANNENBERG PUB. POLICY CTR. OF THE UNIV. OF PA., PUBLIC UNDERSTANDING OF AND SUPPORT FOR THE COURTS (2007), available at http://www.law.georgetown.edu/ Judiciary/documents/finalversionJUDICIALFINDINGSoct 1707.pdf;
98. CHRISTIAN W. PECK, ZOGBY INT'L, ATTITUDES AND VIEWS OF AMERICAN BUSINESS LEADERS ON STATE JUDICIAL ELECTIONS AND POLITICAL CONTRIBUTIONS TO JUDGES (2007), available at http://ced.org/images/content/events/judicial/zogbyo7.pdf.
99. See, e.g., AM. JUSTICE P'SHIP FOUND., VOTER OPINION ON THE ELECTION OR APPOINTMENT OF STATE SUPREME COURT JUSTICES (2008), available at http:// www.legalreforminthenews.com/2008PDFS/State-Supreme-Court-Elected-vs. -Appointed-7-8-08.pdf (finding that most Americans support electing state supreme court justices);
100. HARRIS INTERACTIVE, MOST AMERICANS WANT STATE JUDGES TO BE ELECTED (2008), http://www.harrisinteractive.com/harris-poll/index.asp?PID=960.
101. But see Tony Mauro, Op-Ed., Judges Shouldn't Have To Please Voters, USA TODAY, Oct. 18, 2000, at 17A ("[A]s undemocratic as it seems to say it, electing judges is the evil that needs to be reformed.").
102. See generally M/A/R/C RESEARCH, AM. BAR ASS'N, PERCEPTIONS OF THE U.S. JUSTICE SYSTEM (1999), available at http://www.abanet.org/media/perception/ perceptions.pdf.
103. Judicial elections were intended to be unique, subject to special limitations that would preserve the courts' integrity and assure impartiality while accommodating the public's desire for accountability. See Kermit L. Hall, Judicial Independence and the Majoritarian Difficulty, in THE JUDICIAL BRANCH 60, 60-66 (Kermit L. Hall & Kevin T. McGuire eds., 2005).
104. See THE FEDERALIST NO. 78, at 437 (Alexander Hamilton) (Clinton Rossiter ed., 1999) ("This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of . . . designing men . . . .").
105. Compare Caperton, 129 S. Ct. at 2267 (stating that Congress and states "remain free to impose more rigorous standards for judicial disqualification"
106. (quoting Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 828 (1986))),
107. with id. (Roberts, C.J., dissenting) (noting that disqualification issues were traditionally left to legislation or court rules).
108. "The Due Process Clause demarks only the outer boundaries of judicial disqualifications. Congress and the states, of course, remain free to impose more rigorous standards for judicial disqualification than those we find mandated here today." Id. (majority opinion) (quoting Lavoie, 475 U.S. at 828);
109. see also Bracy v. Gramley, 520 U.S. 899, 904 (1997) (referring to "the floor established by the Due Process Clause").
110. Many states have accepted this invitation, first issued by Justice Kennedy in his concurring opinion in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), in which he stated that "[states] may adopt recusal standards more rigorous than due process requires, and censure judges who violate these standards,"
111. id. at 794 (Kennedy, J., concurring).
112. See, e.g., ALA. CODE §§12-24-1 to -2 (2006) (setting recusal rules related to campaign contributions);
113. MISS. CODE OF JUDICIAL CONDUCT Canon 3(E)(2) (2002) (including campaign contributions among factors for consideration in recusal decision);
114. WASH. CODE OF JUDICIAL CONDUCT Canon 7(B)(2) cmt. (1995) (stating that campaign contributions are a factor to consider in recusal decisions).
115. See Caperton, 129 S. Ct. at 2267 (Roberts, C.J., dissenting).
116. See id. at 2272 ("novel constitutional right");
117. id. at 2275 (Scalia, J., dissenting) ("expansion of our constitutional mandate"). Although the positions seem irreconcilable, perhaps, in the words of the Indian parable, both are "partly in the right."
118. See supra notes 21-24 and accompanying text. The Court has never determined whether campaign contributions constitute an "interest" sufficient to require judicial disqualification under the Due Process Clause. In that sense, the issue was novel and unrecognized,
119. Caperton, 129 S. Ct. at 2267, 2272 (Roberts, C.J., dissenting), but the deeply rooted and largely undisturbed precedent at the core of the holding led to the application of an existing constitutional rule. Fundamental constitutional rules must be broad enough to accommodate changing facts and, as here, emerging problems. Notably, the dissenters' dogged characterization of Caperton as a new constitutional rule was unnecessary to a holding favoring the respondent. The dissenting Justices could have proposed a different standard, perhaps giving greater weight to the presumption of judicial impartiality.
120. See id. at 2267-68. They could have required a proven nexus between the contribution and the outcome of the election.
121. See id. at 2270. They could have found that the facts of the case were not sufficiently extreme to give rise to a probability of bias as the Chief Justice suggested.
122. See id. at 2273-74. The dissent mentions all of these points, but harps on the creation of a new, unworkable constitutional rule. By characterizing the rule as "new," the dissenters cabin the Caperton principle into the nonretroactivity jurisprudence of
123. Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality opinion). While the remaining members of the majority would presumably see the rule as "existing,"
124. id. at 301, when asked to apply it retroactively, Justice Souter's retirement leaves the issue of retroactivity an open question.
125. Caperton, 129 S. Ct. at 2267 (Roberts, C.J., dissenting).
126. See id. at 2274 (Scalia, J., dissenting). Justice Scalia predicts that the public's view of the profession will become as cynical as his own.
127. Id.
128. Id. at 2267 (Roberts, C.J., dissenting).
129. Id. at 2263 (majority opinion) ("The work of deciding cases goes on every day in hundreds of courts throughout the land. Any judge, one might suppose, would find it easy to describe the process which he had followed a thousand times and more. Nothing could be farther from the truth."
130. (quoting BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 9 (1921))).
131. Id.
132. Id. at 2266.
133. Id. at 2272 (Roberts, C.J., dissenting).
134. Id. Arguably, judges are already fulfilling this role.
135. See, e.g., Bush v. Gore, 531 U.S. 98 (2000);
136. In re Contest of Gen. Election, 767 N.W.2d 453 (Minn. 2009). In addition, in those states that elect or retain judges, judges must be familiar with the theory and practice of politics and political behavior. See generally Caufield, supra note 7 (discussing how the White decision led to the rise of issue-based judicial campaigns).
137. Caperton, 129 S. Ct. at 2272 (Roberts, C.J., dissenting). Judges frequently apply economic principles
138. . See, e.g., Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 300-34 (2d Cir. 2008).
139. See generally Robert M. Lloyd, Proving Lost Profits After Daubert Five Questions Every Court Should Ask Before Admitting Expert Testimony, 41 U. RICH. L. REV. 379 (2007) (discussing tasks judges must consider when determining admissibility of expert testimony on issue of lost profits).
140. Caperton, 129 S. Ct. at 2272 (Roberts, C.J., dissenting). Judges often resolve complicated issues involving human behavior.
141. See, e.g., Roper v. Simmons, 543 U.S. 551 (2005);
142. Atkins v. Virginia, 536 U.S. 304 (2002).
143. See generally Richard J. Bonnie, The American Psychiatric Association's Resource Document on Mental Retardation and Capital Sentencing: Implementing Atkins v. Virginia, 28 MENTAL & PHYSICAL DISABILITY L. REP. 11 (2004) (discussing numerous issues that must be resolved in evaluating claims of mental retardation).
144. Caperton, 129 S. Ct. at 2267 (Roberts, C.J., dissenting) (predicting that "groundless" charges of judicial bias will be filed);
145. id. at 2274 (Scalia, J., dissenting).
146. Id. at 2274 (Scalia, J., dissenting).
147. See id. at 2272 (Roberts, C.J., dissenting);
148. id. at 2274 (Scalia, J., dissenting).
149. The war analogy is Justice Scalia's, who views the majority opinion as "adding to the vast arsenal of lawyerly gambits."
150. Id. at 2274 (Scalia, J., dissenting) ("Many billable hours will be spent in poring through volumes of campaign finance reports, and many more in contesting nonrecusal decisions through every available means.").
151. Id. at 2272 (Roberts, C.J., dissenting).
152. Cf. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 162-63 (1951) (Frankfurter, J., concurring);
153. Gretchen Mae Stone, NEW: Supreme Court Says Benjamin Should Have Recused Himsetf, ST. J. (Charleston, W Va.), June 8, 2009, http://www.statejournal.com/ story.cfm?func=viewstory&storyid=60563 (quoting Justice Benjamin as describing the majority opinion as recognizing that "there is no 'white line' to guide judges like me").
154. These observations are based on my experience as a state trial and appellate judge and my interaction as a judicial educator with judges from all fifty states. I have found that most judges frequently attend continuing judicial education programs to remain abreast of legal developments and to improve their judicial skills.
155. In addition to personal observations made while serving as a judge, I note that Justices Starcher and Maynard recused themselves in the case at bar under circumstances that were less compelling than those involving Justice Benjamin. See Editorial, Bravo: Starcher, Maynard Acts, CHARLESTON GAZETTE, Feb. 16, 2008, http://www.wvgazette.com/Opinion/Editorials/200802150735. Massey Energy Company and Marfork Coal Company sued the West Virginia Supreme Court of Appeals based upon Justice Starcher's refusal to grant recusal.
156. See Complaint for Declaratory and Injunctive Relief, Massey Energy Co. v. W Va. Supreme Court of Appeals, No.2:06-0614 (S.D. W. Va. Aug. 8, 2006), available at http://www.huntingtonnews.net/state/massey.pdf.
157. See, e.g., Berger v. United States, 255 U.S. 22, 35 (1921) ("And in this there is no serious detriment to the administration of justice nor inconvenience worthy of mention, for of what concern is it to a judge to preside in a particular case; of what concern to other parties to have him so preside?").
158. MODEL CODE OF JUDICIAL CONDUCT Canon 2A (2004).
159. See Caperton, 129 S. Ct. at 2272 (Roberts, C.J., dissenting);
160. id. at 2274 (Scalia, J., dissenting). The majority noted that although
161. In re Murchison, 349 U.S. 133 (1955),
162. and Ward v. Village of Monroeville, 409 U.S. 57 (1972), created similar opportunities, the courts did not suffer the deluge the dissent predicts.
163. Caperton, 129 S. Ct. at 2265-2266
164. For example, the 2007 American Bar Association Survey on Lawyer Discipline Systems indicates that out of over 100,000 complaints filed, fewer than 5000 lawyers were charged with disciplinary violations. Given the number of actively licensed lawyers (more than 1.4 million), the rate of complaints is barely one-third of one percent. AM. BAR ASS'N, 2007 SURVEY ON LAWYER DISCIPLINE SYSTEMS, chart I (2007), available at http://www.abanet.org/cpr/discipline/ sold/full.pdf.
165. Cf. Caperton, 129 S. Ct. at 2274 (Scalia, J., dissenting) (asserting that the Court's decision will reinforce widely held perceptions about lawyers' eagerness to draw out legal proceedings for their own gain).
166. See, e.g., Berger, 255 U.S. at 35 (recognizing that a lawyer who files a frivolous motion for recusal supported by a fraudulent affidavit is subject to a perjury charge).
167. In the event of a successful motion, counsel is unlikely to have any input into who is designated to replace the disqualified judge.
168. MODEL RULES OF PROF'L CONDUCT R. 3.1 (2007) ("A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.").
169. Rule 8.3(a) of the Model Rules of Professional Conduct requires a lawyer who knows that "another lawyer has committed a violation of the Rules of Professional Conduct that raises a sub- stantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects" to report the misconduct. Id. R. 8.3(a).
170. Canon 3D(2) of the Model Code of Judicial Conduct requires similar reporting by judges. MODEL CODE OF JUDICIAL CONDUCT Canon 3D(2) (2004).
171. For example, Rule 11(b) of the Federal Rules of Civil Procedure, the source for many comparable state rules, provides: By presenting to the court a pleading, written motion, or other paper ... an attorney. . . certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery .... FED. R. CIV. P. 11(b).
172. See id. 11(c).
173. A lawyer who filed a frivolous recusal motion likely would violate multiple ethics rules. See, e.g., MODEL RULES OF PROF'L CONDUCT R. 8.4(c) (2007) (forbidding "conduct involving dishonesty, fraud, deceit or misrepresentation");
174. id. R. 8.4(d) (forbidding "conduct that is prejudicial to the administration of justice");
175. id. R. 3.3(a)(1) (declaring that lawyers shall not "make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law that was previously made to the tribunal by the lawyer").
176. See, e.g., Ward v. ViIl. of Monroeville, 409 U.S. 57 (1972);
177. In re Murchison, 349 U.S. 133 (1955);
178. Tumey v. Ohio, 273 U.S. 510 (1927).
179. See Ward, 409 U.S. 57.
180. See Confirmation Hearing on the Nomination of John G. Roberts, Jr. To Be Chief Justice of the United States Before the S. Comm. on the Judiciary, iogth Cong. 229, 256 (2005), available at http://www.washingtonpost.com/wp-dyn/ content/article/2005/09/13/AR2005091301838.html;
181. cf., e.g., Morse v. Frederick, 127 S. Ct. 2618 (2007) (restricting student's free speech rights in a majority opinion written by Chief Justice Roberts).
182. These examples are chosen from an almost limitless list that includes cases interpreting the Fourth Amendment's "reasonableness standard," see, e.g., Arizona v. Gant, 129 S. Ct. 1710 (2009),
183. and good faith exception, see, e.g., Herring v. United States, 129 S. Ct. 695 (2009), as well as the Sixth Amendment's right to counsel,
184. see, e.g., Montejo v. Louisiana, 129 S. Ct. 2079 (2009);
185. Kansas v. Ventris, 129 S. Ct. 1841 (2009).
186. See, e.g., Kirby v. United States, 174 U.S. 47 (1899);
187. Mattox v. United States, 156 U.S. 237 (1895).
188. -541 U.S. 36 (2004);
189. see id. at 60-63.
190. See id. at 68 ("We leave for another day any effort to spell out a comprehensive definition of 'testimonial.'").
191. Hammon v. State, 829 N.E.2d 444 (Ind. 2005), rev'd and remanded, 547 U.S. 813 (2006);
192. State v. Davis, m P.3d 844 (Wash. 2005), aff'd, 547 U.S. 813 (2006).
193. See, e.g., Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009);
194. Giles v. California, 128 S. Ct. 2678 (2008);
195. Danforth v. Minnesota, 128 S. Ct. 1029 (2008);
196. Whorton v. Bockting, 127 S. Ct. 1173 (2007);
197. Davis v. Washington, 547 U.S. 813 (2006).
198. -530 U.S. 466 (2000).
199. Id. at 477.
200. See, e.g., United States v. Booker, 375 F.3d 508 (7th Cir. 2004),
201. off d and remanded, 543 U.S. 220 (2005);
202. State v. Gomez, 163 S.W.3d 632 (Tenn. 2005), vacated and remanded, 127 S. Ct. 1209 (2007);
203. State v. Blakely, 47 P.3d 149 (Wash. Ct. App. 2002), rev'd, 542 U.S. 296 (2004).
204. See, e.g., United States v. Booker, 543 U.S. 220 (2005) (federal sentencing guidelines);
205. Blakely v. Washington, 542 U.S. 296 (2004) (state court sentencing);
206. Ring v. Arizona, 536 U.S. 584 (2002) (aggravating circumstances in death penalty case).
207. In BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), Justices Scalia and Thomas dissented from this application of the Due Process Clause.
208. Id. at 598-599 (Scalia, J., dissenting, joined by Thomas, J.). They have adhered to their disagreement in subsequent cases.
209. See, e.g., Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008);
210. Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007);
211. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003);
212. Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001).
213. Gore, 517 U.S. at 574-575
214. See State Farm, 538 U.S. at 419-425 (adding as indicators of reprehensibility: presence of physical as opposed to economic harm, reckless disregard for health or safety of others, financial vulnerability of the victim, and repetitiveness or maliciousness of defendant's conduct).
215. See id. at 425 ("We decline again to impose a bright-line ratio which a punitive damages award cannot exceed. Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.").
216. Chief Justice Roberts and Justice Alito were in the majority in Philip Morris, 127 S. Ct. at 1060.
217. Justice Alito recused himself due to stock ownership in Exxon Shipping Co.,
218. see Linda Greenhouse, Justices To Hear Exxon's Challenge to Punitive Damages, N.Y. TIMES, Oct. 30, 2007, at C5,
219. but Chief Justice Roberts was in the majority, 128 S. Ct. at 2611.
220. Justices Scalia and Thomas joined the majority, but adhered to their previous views. Id. at 2634 (Scalia, J., concurring, joined by Thomas, J.).
221. Caperton, 129 S. Ct. at 2272 (Roberts, C.J., dissenting).
222. Id. at 2266-67 (majority opinion);
223. see, e.g., Mayberry v. Pennsylvania, 400 U.S. 455, 469 (1971) (Harlan, J., concurring) ("[T]he appearance of evenhanded justice ... is at the core of due process.");
224. In re Murchison, 349 U.S. 133, 136 (1955) ("[T]o perform its high function in the best way 'justice must satisfy the appearance of justice.'"
225. (quoting Offutt v. United States, 348 U.S. 11, 14 (1954))).
226. Caperton, 129 S. Ct. at 2268-2269, 2272 (Roberts, C.J., dissenting).
227. Id. at 2267
228. (citing Republican Party of Minn. v. White, 536 U.S. 765, 796 (2002) (Kennedy, J., concurring)).
229. Id.
230. (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).
231. I am using the phrase "objective appearances" to capture whether bias appears to exist to an objective observer, in recognition of the importance of the appearance of justice. See supra cases cited note 112 and accompanying text.
232. Caperton, 129 S. Ct. at 2272, 2274 (Roberts, C.J., dissenting);
233. id. at 2274 (Scalia, J., dissenting).
234. Id. at 2274 (Roberts, C.J., dissenting);
235. id. (Scalia, J., dissenting);
236. see also Liteky v. United States, 510 U.S. 540, 549 (1994) ("Bias and prejudice seem to us not divided into the 'personal' kind, which is offensive, and the official kind, which is perfectly all right. As generally used, these are pejorative terms, describing dispositions that are never appropriate.").
237. Caperton, 129 S. Ct. at 2272 (Roberts, C.J., dissenting) (question 39).
238. Id. (question 40).
239. Id. at 2267 (advocating retention of the standard that "[u]ntil today . . . recognized exactly two situations in which the Federal Due Process Clause requires disqualification of a judge").
240. For example, the dissent asked, "[D]o we analyze the due process issue through the lens of a reasonable person, a reasonable lawyer, or a reasonable judge?" Id. at 2270 (question 24).
241. Compare id. (question 24),
242. with id. at 2266 (majority opinion) (applying a reasonable person standard by focusing on the importance of public confidence in the judiciary).
243. For example, the dissent asked, "Does close personal friendship between a judge and a party or lawyer now give rise to a probability of bias?"
244. Id. at 2270 (Roberts, C.J., dissenting) (question 21).
245. Id. at 2274 (Scalia, J., dissenting).
246. I categorize the questions as follows: questions concerning the (1) general application of Caperton to nonpecuniary interests (prefatory question);
247. amount of contribution (questions 1 and 2);
248. type of contribution (questions 3, 18, 20, 31, and 32);
249. nature of contributor (questions 4, 8, 10, 11, 21, 22, and 29);
250. nature and posture of case (questions 5, 9, 12, 14, 15, 27, 28, 34, 36, and 38)
251. and issues of cause and effect (questions 7, 13, and 25);
252. judge, judicial selection method, and judicial decision (questions 6, 16, 17, 26, and 30);
253. applicable procedure (questions 19, 33, 35, 37, 39, and 40).
254. A few questions admittedly do not fall neatly into any of these categories (questions 23 and 24).
255. Caperton, 129 S. Ct. at 2269 (Roberts, C.J., dissenting).
256. See Withrow v. Larkin, 421 U.S. 35, 47 (1975) ("Not only is a biased decisionmaker constitutionally unacceptable but 'our system of law has always endeavored to prevent even the probability of unfairness.'"
257. (quoting In re Murchison, 349 U.S. 133, 136 (1955)));
258. Murchison, 349 U.S. at 136 ("Fairness of course requires an absence of actual bias in the trial of cases.").
259. See cases cited supra note 112.
260. Tumey v. Ohio, 273 U.S. 510, 523 (1927) (noting that "the slightest pecuniary value" rendered a decision voidable at common law, id. at 525). At common law there was the "greatest sensitiveness over the existence of any pecuniary interest, however small or infinitesimal."
261. Id. at 525. This aversion was the precursor of modern-day recusal statutes.
262. See 28 U.S.C §455(d)(4) (2006) (defining a "financial interest," which requires disqualification,
263. id. §455(b)(4), as "ownership of a legal or equitable interest, however small").
264. See, e.g., Bracy v. Gramley, 520 U.S. 899 (1997);
265. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986);
266. Gibson v. Berryhill, 411 U.S. 564 (1973);
267. Ward v. Vill. of Monroeville, 409 U.S. 57 (1972).
268. -409 U.S. 57.
269. Id. at 60-61.
270. -520 U.S. 899.
271. Id. at 909-10. So-called "compensatory bias" is also recognized as a basis for judicial disqualification under 28 U.S.C §455(a), a federal judicial disqualification statute, which, while not setting forth a constitutional rule, provides for disqualification when a judge's "impartiality might reasonably be questioned." 28 U.S.C §455(a). Some federal circuits interpret the statute to support disqualification of a judge who is biased in favor of a party, on motion filed by the favored party, under the theory that the judge may actually overcompensate and inadvertently favor the other side.
272. See, e.g., Guest v. McCann, 474 F.3d 926, 931 (7th Cir. 2007);
273. Pashaian v. Eccelston Props., Ltd., 88 F.3d 77, 81-83 (2d Cir. 1996) (holding alleged compensatory bias sufficient to give party standing to move for judicial recusal);
274. see also State v. Benson, 973 S.W.2d 202 (Tenn. 1998) (holding that allegation that judge solicited bribe should be considered in postconviction case).
275. -411 U.S. 564.
276. Id. at 578-579
277. Tumey v. Ohio, 273 U.S. 510, 520(1927).
278. Ward v. Vill. of Monroeville, 409 U.S. 57, 60 (1972).
279. Gibson, 411 U.S. at 571.
280. -475 U.S. 813, 817 (1986).
281. Id. at 824-825
282. Id. at 825.
283. See, e.g., Mayberry v. Pennsylvania, 400 U.S. 455 (1971);
284. Offutt v. United States, 348 U.S. 11 (1954);
285. cf. Ungar v. Sarafite, 376 U.S. 575 (1964). These cases include those in which the judge was the target of personal abuse or criticism that resulted in a citation for criminal contempt.
286. In re Murchison, 349 U.S. 133 (1955).
287. Id. at 136. The principle quoted in Murchison comes from the ancient maxim "aliquis non debet esse Judex in propria causa," which was one basis of the decision in Dr. Bonham's Case, 8 Co. Rep. 107a, 77 Eng. Rep. 638 (CP. 1610). Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499, 2513 n. (2007) (Scalia, J., concurring in the judgment) (quoting Dr. Bonham's Case, 8 Co. Rep. at 118a, 77 Eng. Rep. at 652). The case, authored by Lord Coke, also concluded that a medical board that would benefit from the fine imposed could not hear the case against Dr. Bonham. Dr. Bonham's Case, 8 Co. Rep. 107a, 77 Eng. Rep. 638.
288. Mayberry, 400 U.S. at 465 (quoting Offutt, 348 U.S. at 17).
289. See, e.g., Lavoie, 475 U.S. at 825;
290. Gibson v. Berryhill, 411 U.S. 564, 571 (1973);
291. Ward v. Vill. of Monroeville, 409 U.S. 57, 60 (1972).
292. A judge's political interest in remaining in office or securing another office may tempt the judge to issue decisions that curry favor with or avoid disfavor of campaign contributors, political party leaders, and special interest groups.
293. For example, in Mayberry v. Pennsylvania, 400 U.S. 455, in what Justice Douglas described as "tactics taken from street brawls and transported to the courtroom," a pro se defendant repeatedly insulted the trial judge.
294. Id. at 462. The insults included calling the judge a "hatchet man for the State,"
295. id. at 456; a "dirty, tyrannical old dog,"
296. id. at 466; a "stumbling dog,"
297. id. at 467; a "nut,"
298. id. at 460; and a "bum,"
299. id. at 458, and referring to the proceeding as "the Spanish Inquisition,"
300. id. at 460; a "kowtow[ing],"
301. id. at 458; and a "railroading],"
302. id.
303. See also Bean v. Bailey, 280 S.W.3d 798 (Tenn. 2009) (holding that trial judge should have recused himself based on past acrimony between judge and law firm, which included reciprocal ethics complaints and judge's initiation of criminal investigation of lawyer).
304. Caperton, 129 S. Ct. at 2269 (Roberts, C.J., dissenting) (questions 1-2).
305. Justice Benjamin also craved a bright-line rule, although he referred to it as a "white[-]line" rule. See Stone, supra note 77 (internal quotation marks omitted).
306. Caperton, 129 S. Ct. at 2263-2264
307. Id. at 2263.
308. Id. at 2264. The balancing approach also includes the "apparent effect such contribution had on the outcome of the election." Id.
309. Id. at 2269 (Roberts, C.J., dissenting) (question 3).
310. Id. at 2270-2271 (questions 18 and 31).
311. Ward v. Vill. of Monroeville, 409 U.S. 57, 59-60 (1972).
312. Gibson v. Berryhill, 411 U.S. 564, 579 (1973).
313. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 824-825 (1986).
314. These were the Caperton facts: Don Blankenship contributed the $1000 statutory maximum directly to Justice Benjamin's campaign committee, but donated $2.5 million to a section 527 political organization whose purpose was to oppose incumbent Justice McGraw as well as to promote Justice McGraw's opponent, Justice Benjamin. Caperton, 129 S. Ct. at 2257. The additional $500,000 that Blankenship invested was in the form of direct expenditures for mail, newspaper, and television advertisements. Id. These circumstances required Justice Benjamin's recusal, making it clear that a probability of bias may be created not only by direct contributions, but also by "independent, non-coordinated expenditures" and contributions to "outside" groups.
315. Id. at 2269 (Roberts, C.J., dissenting).
316. See Gibson, 411 U.S. at 579 (holding possible financial benefit inuring from disqualifying competing optometrists sufficient to disqualify board members although there was no certain financial benefit); Ward, 409 U.S. at 59-60 (holding mayor's executive responsibilities for village finances sufficient to disqualify mayor as judge although mayor did not reap any direct, personal benefit).
317. Caperton, 129 S. Ct. at 2269-2270 (Roberts, C.J., dissenting) (questions 10 and 22).
318. Id. at 2271 (question 29) ("Does a contribution from a corporation get imputed to its executives, and vice-versa? Does a contribution or expenditure by one family member get imputed to other family members?").
319. The dissent asked, "Does it matter whether the litigant has contributed to other candidates or made large expenditures in connection with other elections?" Id. at 2269 (question 4).
320. Blankenship, the contributor in this case, regularly and generously contributed to candidates for elected office in West Virginia. He is reported to have said, "I've been around West Virginia long enough to know that politicians don't stay bought, particularly ones that are going to be in office for 12 years," referring to the terms of the justices of West Virginia's highest court. Adam Liptak, Case May Alter the Election of Judges, N.Y. TIMES, Feb. 15, 2009, at A29.
321. The Lincoln Journal reports that fifty years ago, "West Virginia politicians used half-pints of whiskey to buy votes under the bi-partisan belief that 'it ain't wrong to pay a man to do right.'" Lottery Commission Likely To Revoke Ferrell Gambling Licenses, LINCOLN J., June 17, 2009, http://www.lincolnjournalinc.com (search archives for "Lottery Commission Likely To Revoke Ferrell Gambling Licenses"; then follow "17 JUN.09" hyperlink).
322. Notably, this discussion concerns situations of probable bias; actual bias on the part of a judicial decisionmaker is an automatic due process violation, regardless of whether it is visible to the general public. See Withrow v. Larkin, 421 U.S. 35, 47 (1975).
323. See Caperton, 129 S. Ct. at 2269-72 (Roberts, C.J., dissenting);
324. id. at 2269 (question 5, amount at issue and type of relief);
325. id. at 2269-70 (questions 9, 12 and 14, nature of relief);
326. id. at 2270-71 (questions 15 and 36, status of cases);
327. id. at 2271 (questions 27 and 28, pending cases);
328. id. at 2270-71 (questions 27 and 38, cases on appeal);
329. id. at 2271 (question 34, collateral claims).
330. For example, had Caperton sought only to enjoin A.T. Massey Coal Company from interfering with contractual rights, Justice Benjamin's participation in the appeal nonetheless would have violated due process.
331. Caperton, 129 S. Ct. at 2269-71 (Roberts, C.J., dissenting);
332. id. at 2269, 2271 (questions 7, 28, and 34, duration of claim);
333. id. at 2270-71 (question 25, causation);
334. id. at 2270 (question 13, effect).
335. See Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 831 (1986) (Brennan, J., concurring) ("The participation of a judge who has a substantial interest in the outcome of a case of which he knows at the time he participates necessarily imports a bias into the deliberative process. This deprives litigants of the assurance of impartiality that is the fundamental requirement of due process.");
336. id. at 833 (Blackmun, J., concurring) ("The violation of the Due Process Clause occurred when Justice Embry sat on this case, for it was then the danger arose that his vote and his views, potentially tainted by his interest..., would influence the votes and views of his colleagues.");
337. Ward v. Vill. of Monroeville, 409 U.S. 57, 61-62 (1972) ("Nor, in any event, may the State's trial court procedure be deemed constitutionally acceptable simply because the State eventually offers a defendant an impartial adjudication. Petitioner is entitled to a neutral and detached judge in the first instance.");
338. Tumey v. Ohio, 273 U.S. 510, 535 (1927) ("No matter what the evidence was against him, he had the right to have an impartial judge.").
339. Caperton, 129 S. Ct. at 2269 (Roberts, C.J., dissenting) (question 6).
340. See supra note 50.
341. Lavoie, 475 U.S. at 831 (Brennan, J., concurring).
342. Id.
343. Id. at 833 (Blackmun, J., concurring).
344. Caperton, 129 S. Ct. at 2270 (Roberts, C.J., dissenting) (question 13).
345. Id. at 2271 (question 30).
346. See generally B. Michael Dann & Randall M. Hansen, Judicial Retention Elections, 34 LOY. L.A. L. REV. 1429 (2001).
347. See id. at 1431-1436 (describing several bitter retention campaigns).
348. A more complex question is raised when the "just say no" campaign is successful. In retention states, when a judge is not retained, the state's appointment mechanism is triggered. In most states, the vacant position is filled by the governor. See id. at 1442 app. The governor may have been openly supportive of the special interest groups' efforts and may commit to appoint a judge based on philosophical consistencies between the appointee and the special interest groups. This occurred in Tennessee in 1996 when Governor Don Sundquist pledged to appoint only judges who supported capital punishment. See Tom Humphrey, White Ouster Signals New Political Era, KNOXVILLE NEWS SENTINEL, Aug. 4, 1996, at A1. This situation would raise a serious question of probable bias.
349. See Caperton, 129 S. Ct. at 2269 (Roberts, C.J., dissenting) (question 7).
350. Id. at 2270 (question 16).
351. Notably, the respondents in Caperton filed a supplemental brief on the day after oral argument detailing Justice Benjamin's votes in other cases involving A.T. Massey Coal Company based on statistics that were compiled by a state office. Gretchen Mae Stone, Lawyers Want High Court To Consider Voting Record, ST. J. (Charleston, W. Va.), Mar. 13, 2009, at 21.
352. See Caperton, 129 S. Ct. at 2270 (Roberts, C.J., dissenting) (question 17).
353. See id. at 2263 (majority opinion).
354. -520 U.S. 899, 905 (1997).
355. Caperton, 129 S. Ct. at 2271 (Roberts, C.J., dissenting) (question 33).
356. See id. at 2270-72 (questions ig, 33, 35, 37, 39, and 40).
357. See, e.g., Panetti v. Quarterman, 127 S. Ct. 2842, 2856 (2007) (recognizing that as long as due process is satisfied, states may develop requirements for determining insanity in capital cases);
358. Atkins v. Virginia, 536 U.S. 304, 317 (2002) (recognizing that as long as due process is satisfied, states may develop requirements for determining mental retardation in capital cases).
359. -28 U.S.C. § 144 (2006) (setting forth procedure for alleging that a federal judge has personal bias or prejudice).
360. See supra note 58.
361. This is a project of the American Bar Association Standing Committee on Judicial Independence. For a draft of proposed Rule 2.11 and a report, see JUDICIAL DISQUALIFICATION PROJECT, DRAFT REPORT OF THE JUDICIAL DISQUALIFICATION PROJECT (2008), available at http://www.ajs.org/ethics/pdfs/ ABAJudicialdisqualificationprojectreport.pdf. The report has not been considered officially by the ABA.
362. See id.;
363. see also Deborah Goldberg, James Sample & David E. Pozen, The Best Defense: Why Elected Courts Should Lead Recusal Reform, 46 WASHBURN L.J. 503, 525-534 (2007) (suggesting both substantive and procedural reforms).
364. The motion should be filed in the case in which recusal is sought.
365. Motions filed without sufficient evidentiary support should be summarily denied unless supported by counsel's certificate that evidentiary support is likely to be discovered provided counsel is given a reasonable opportunity for further investigation. The rule should require that counsel certify and detail the investigative efforts that have been and will be undertaken to provide the evidentiary support for the motion.
366. Although the parties' interests will not always be adversarial, fairness dictates that both sides should have an opportunity to be heard.
367. States may choose to use special, senior, or retired judges, or active judges from other jurisdictions, but should not appoint judges who are associated closely with the judge whose recusal is sought. Judges who have served together on multi-judge courts or on statewide judicial committees may be influenced by their friendship or association or by the prospect of reciprocity.
368. Some have suggested that judicial panels, rather than individual judges, make the recusal decision. Others suggest that the challenged judge on a state's high court consult with others before deciding whether to recuse. See Roy A. Schotland, A Plea for Reality, Mo. L. REV. (forthcoming 2009). Others have suggested that states create recusal advisory boards to counsel judges about difficult recusal issues.
369. See Goldberg et al., supra note 191, at 533-534
370. See JUDICIAL DISQUALIFICATION PROJECT, supra note 190. States must decide whether to allow an immediate appeal of the recusal ruling. Courts have reached different results on this issue, but the more persuasive approach favors an immediate appeal. An immediate appeal allows the state to honor the fundamental importance of the right to a fair tribunal and promote finality of decisions. See cases cited supra note 169. The filing of frivolous appeals can be discouraged by enforcing rules that impose fees and costs.
371. These topics are discussed fully by others. See, e.g., Goldberg et al., supra note 191, at 527-530
372. See MODEL CODE OF JUDICIAL CONDUCT R. 2.11(A)(4) (2008).
373. I am aware that many states restrict judges from making "commitments" and "pledges and promises," as does the ABA's Model Code of Judicial Conduct. See MODEL CODE OF JUDICIAL CONDUCT Canon 3B(10) (2004) ("A judge shall not, with respect to cases, controversies or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office."). My suggestion is that the rule be tied to requirements for the disclosure of campaign conduct discussed in the subsequent paragraph.
374. See, e.g., TEX. ELEC. CODE ANN. § 253.155 (Vernon Supp. 2008).
375. See RICHARD E. FLAMM., JUDICIAL DISQUALIFICATION: RECUSAL AND DISQUALIFICATION OF JUDGES § 26.1, at 753 (2d ed. 2007) (stating that a "substantial minority" of states have judicial peremptory challenge statutes).
376. See JUDICIAL DISQUALIFICATION PROJECT, supra note 190.
377. Montana, for example, refers to the procedure as a "substitution. " MONT. CODE ANN. §3-1-804 (2007). The use of this term might address concerns that the practice is disparaging to judges.
378. See supra p. 37.
379. See, e.g., Kan. Judicial Review v. Stout, 519 F.3d 1107 (10th Cir. 2008) (challenging prohibitions on personal solicitation of political contributions and candidates' pledges, promises, and commitments);
380. Ind. Right to Life, Inc. v. Shepard, 507 F.3d 545 (7th Cir. 2007) (challenging prohibition of candidates' pledges, promises, and commitments);
381. Pa. Family Inst., Inc. v. Black, 489 F.3d 156 (3d Cir. 2007) (per curiam) (challenging prohibitions on candidates' responses to questionnaires eliciting candidates' views);
382. Republican Party of Minn. v. White, 416 F.3d 738 (8th Cir. 2005) (challenging prohibition on candidates' partisan political activity and personal solicitation of political contributions);
383. Family Trust Found, of Ky., Inc. v. Ky. Judicial Conduct Comm'n, 388 F.3d 224 (6th Cir. 2004) (challenging prohibition of candidates' pledges);
384. Christian Coal. of Ala. v. Cole, 355 F.3d 1288 (11th Cir. 2004) (challenging restrictions on responses to questionnaires);
385. Spargo v. N.Y. State Comm'n on Judicial Conduct, 351 F.3d 65 (2d Cir. 2003) (challenging prohibitions on partisan political activity);
386. N.D. Family Alliance, Inc. v. Bader, 361 F. Supp. 2d 1021 (D.N.D. 2005) (challenging prohibitions on candidates' promises, pledges, and commitments).
387. See, e.g., Richard Briffault, Judicial Campaign Codes After Republican Party of Minnesota v. White, 153 U. PA. L. REV. 181, 233-38 (2004);
388. Katherine A. Moerke, Must More Speech Be the Solution to Harmful Speech? Judicial Elections After Republican Party of Minnesota v. White, 48 S.D. L. REV. 262, 294-312 (2003).
389. See, e.g., Michelle T. Friedland, Disqualification or Suppression: Due Process and the Response to Judicial Campaign Speech, 104 COLUM. L. REV. 563, 605-613 (2004).
390. See White, supra note 31, at 28-47.
391. James Bopp, attorney for the plaintiffs in Republican Party of Minnesota v. White, warns that "[i]f anybody tries to draw a rule from this that is generally applicable, they're wrong.... They're distorting the [C]ourt's decision. It would be challengeable."
392. Amanda Bronstad, Stage Set for Lawsuits over Judicial Recusal, NAT'L L.J., June 22, 2009, at 8.