Caperton recusal motions

al_petrofsky

June 8, 2009

Speaking of snark, another classic Scalia dissent was entered today:

The principal purpose of this Court's exercise of its certiorari jurisdiction is to clarify the law. See this Court's Rule 10. As THE CHIEF JUSTICE's dissent makes painfully clear, the principal consequence of today's decision is to create vast uncertainty with respect to a point of law that can be raised in all litigated cases in (at least) those 39 States that elect their judges. This course was urged upon us on grounds that it would preserve the public's confidence in the judicial system. Brief for Petitioners 16.

The decision will have the opposite effect. What above all else is eroding public confidence in the Nation's judicial system is the perception that litigation is just a game, that the party with the most resourceful lawyer can play it to win, that our seemingly interminable legal proceedings are wonderfully self-perpetuating but incapable of delivering real-world justice. The Court's opinion will reinforce that perception, adding to the vast arsenal of lawyerly gambits what will come to be known as the Caperton claim. The facts relevant to adjudicating it will have to be litigated -- and likewise the law governing it, which will be indeterminate for years to come, if not forever. 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.

A Talmudic maxim instructs with respect to the Scripture: "Turn it over, and turn it over, for all is therein." The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed -- which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.

(Caperton v. A. T. Massey Coal Co. [ http://supremecourtus.gov/opinions/08pdf/08-22.pdf ], 566 U.S. ___, No. 08-22 (June 8, 2009) (Scalia dissent, in its entirety, with emphasis added))

Any WAGs as to how soon SCO files its Caperton motion for the recusal of Judge Kimball? (and, depending on upcoming decisions, for the recusal of Judges Gross, Lucero, Baldock, and/or McConnell?)

7:19:52 PM

Caperton recusal motions

al_petrofsky

June 8, 2009

I wrote:

Any WAGs as to how soon SCO files its Caperton motion for the recusal of Judge Kimball? (and, depending on upcoming decisions, for the recusal of Judges Gross, Lucero, Baldock, and/or McConnell?)

D'oh! I forgot for a moment there that Kimball, Gross, Lucero, Baldock, and McConnell are all unelected, which would seem to make Caperton irrelevant.

Nevertheless, I'm sure this will not deter imaginative litigants like SCO, who can break ground with a motion based on campaign contributions (and independent expenditures1) not to the judge himself but to the president who nominated the judge and to each senator that voted to confirm him (in the case of District Judge Kimball and Circuit Judges Lucero, Baldock, and McConnell), and, going back one further layer, the campaign contributions to the president and senators responsible for installing the Circuit Judges who appointed a Bankruptcy Judge (in the case of Gross).

Footnote 1: What was at issue in Caperton were not direct monetary campaign contributions:

It is true that Don Blankenship spent a large amount of money in connection with this election. But this point cannot be emphasized strongly enough: Other than a $1,000 direct contribution from Blankenship, Justice Benjamin and his campaign had no control over how this money was spent. Campaigns go to great lengths to develop precise messages and strategies. An insensitive or ham-handed ad campaign by an independent third party might distort the campaign's message or cause a backlash against the candidate, even though the candidate was not responsible for the ads. See Buckley v. Valeo, 424 U. S. 1, 47 (1976) (per curiam) ("Unlike contributions, such independent expenditures may well provide little assistance to the candidate's campaign and indeed may prove counter productive"); see also Brief for Conference of Chief Justices as Amicus Curiae 27, n. 50 (citing examples of judicial elections in which independent expenditures backfired and hurt the candidate's campaign). The majority repeatedly characterizes Blankenship's spending as "contributions" or "campaign contributions," ante, at 1, 3, 14-17, 19, but it is more accurate to refer to them as "independent expenditures." Blankenship only "contributed" $1,000 to the Benjamin campaign.

(Caperton v. A. T. Massey Coal Co. [ http://supremecourtus.gov/opinions/08pdf/08-22.pdf ], 566 U.S. ___, No. 08-22 (June 8, 2009) (dissent of Roberts, C.J., at 13) (emphasis in original))

7:43:55 PM

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