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Winter 2010




DePaul University College of Law




In June of 2009, the U.S. Supreme Court ruled for the first time that an elected judge must recuse himself from a case that involves a major campaign contributor. In Caperton v. A. T. Massey Coal Co., a coal company had been hit with a $50 million jury verdict. While appealing this verdict, the company's CEO, Don Blankenship, spent $3 million to help a challenger, Brent Benjamin, who had no judicial experience, defeat the incumbent, West Virginia Supreme Court Justice Warren McGraw. Blankenship funded political attack ads by a political organization (And for the Sake of the Kids) that was created to defeat McGraw, alleging that he was soft on child molesters.1 The well-financed Benjamin won, 53% to 47%, and was the deciding vote to overturn the jury verdict. In a 5-4 ruling, Justice Anthony M. Kennedy concluded, "There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds ... when the case was pending or imminent."'2 Such political and financial influences on the court violate due process and "threaten to imperil 'public confidence in the fairness and integrity of the nation's elected judges.'

In dissent, Chief Justice John G. Roberts, Jr. expressed concern for public confidence too, but with a very different result. The majority's decision, Roberts feared, "will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case."' 4 Roberts concluded that future Caperton motions will "bring our judicial system into undeserved disrepute, and diminish the confidence of the American people in the fairness and integrity of their courts."' 5 In Caperton, Justice Kennedy and Chief Justice Roberts engaged in a battle of appearances. For Kennedy, litigants who buy seats on courts create an appearance of bias that is severe enough to implicate the right to due process. For Roberts, simply the claims of bias create an appearance of bias, which he believes is undeserved. Roberts then goes on to raise "forty questions" about the future applications of Caperton and its ambiguities, concluding that it creates more problems than it resolves.

I suggest that in explaining the new recusal rule, the Supreme Court should have been even more clear that appearances matter. Caperton requires recusal when a party's campaign support for a judicial candidate creates a "risk of actual bias" or a "probability of bias," rather than an "appearance of bias." However, the "appearance of bias" standard is more rooted in precedent, and in response to Chief Justice Roberts's practical concerns in dissent, the "appearance of bias" standard is actually more practical. I also address Chief Justice Roberts's pragmatic concerns about the manageability of Caperton motions with some observations about civil procedure and the actual practice of judicial elections. Part II argues that the problem of money in judicial elections is real, and not just an isolated case, as Chief Justice Roberts suggested.6 Part III then argues that Caperton motions will be relatively manageable. 7 Part IV focuses in particular on the "appearance of bias" standard as a more established, more practical, and more manageable standard than the "probability of bias" standard.8 Justice Kennedy's switch from "appearance of bias" language to the "actual bias" and "probable bias" language is not an accident. Perhaps mere "appearances" seem superficial, but the dismissal of appearances because of its mere appearance, if you will, is itself superficial. The "appearance of bias" standard is arguably more rooted in Anglo-American precedents, and appearances of bias are real harms in themselves. This Article also suggests that the Court should add an "appearance of justice" standard to capture what may have really been going on in West Virginia: the purchasing of a seat for a true believer who needed no political pressure to bias him in favor of Blankenship and Massey. Part V suggests that the Court does not need to seek perfect clarity in these rulings. In fact, ambiguity and uncertainty have their distinct advantages among reputation-protecting judges and risk-averse parties and lawyers, as long as the Supreme Court does not ignore these issues now that it already has entered the fray. The most important decisions in the future are the decisions to grant certiorari every so often, rather than the exact wording of its decisions.


Part of Symposium: Rising Stars: A New Generation of Scholars Looks at Civil Justice: Fifteenth Annual Clifford Symposium on Tort Law and Social Policy by DePaul University. The entire symposium issue can be found here.

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