The (non)problem of a limited due process right to judicial disqualification.

• Author: Meiser, John A.

With respect to the people that are supporting me [in my election bid], my position has been the same, which is: if the law's in your favor, then I may find for you. If it's against you, then understand that I may find against you, that's the way it is.... That's what I stand for.

--West Virginia Supreme Court Justice Brent D. Benjamin (1)

INTRODUCTION

When West Virginia Supreme Court Justice Brent D. Benjamin cast the deciding vote--twice--to overturn a $50 million award against Massey Energy Co. (Massey), (2) one hopes that the law was on Massey's side. But, despite Justice Benjamin's assurances that it was, (3) several commentators are not so convinced. (4) Their contentions are not with Justice Benjamin's legal reasoning (though that might also be suspect (5)), but rather with his participation in the case to begin with. Indeed, Caperton presented Justice Benjamin and the West Virginia Supreme Court with an unusual scenario: the CEO of appellant Massey, Don Blankenship, was a vocal and generous supporter of Justice Benjamin's recent West Virginia Supreme Court election campaign. (6) He was, one might say, Justice Benjamin's best supporter.

Blankenship donated over $3 million to Benjamin's 2004 election bid--more than all other donors combined--while Massey's case was preparing for appeal. (7)

Understandably, Massy's opponents in Caperton sought to remove Justice Benjamin from the case, but Benjamin refused, and he ultimately voted with a three-to-two majority to overturn the verdict against Blankenship and Massey. (8) However, Massey's opponents would have another chance at the casenas it turns out, Blankenship is remarkably well connected in West Virginia, and that first decision was fraught with potential biases. Shortly after the decision, photographs surfaced of then-Chief Justice Elliott "Spike" Maynard (who also sided with the three-Justice majority) vacationing with Blankenship in Monte Carlo while the appeal was pending. (9) Blankenship's opponents requested, and were granted, a rehearing and Maynard removed himself from the case. (10) On the motion of Massey, a third justice, Larry Starcher, also sat out the second case. (11) In his outrage over the first decision (in which he was half of the two-Justice minority), Justice Starcher had proven to not be Blankenship's biggest supporter. Justice Starcher had in fact vocally berated Blankenship, calling him, among other things, "stupid, evil and a clown." (12) But Justice Benjamin did not follow the lead of his colleagues and remained on the case--as acting Chief Justice--and he once again cast the deciding vote for a three-to-two majority in Massey's favor. (13)

The Massey saga is, in many senses, alarming, and the public has taken notice. News outlets across the country have followed the story, and editorials from the Charleston Gazette (14) to the New York Times (15) have criticized the West Virginia justices' behavior. Chief Justice Maynard has been called "unworthy of the bench," (16) Justice Benjamin has been attacked for a lack of ethics, (17) and the West Virginia Supreme Court as a whole has been described as a "supreme mess." (18) Maynard has already lost his reelection bid, (19) and West Virginia lawmakers are reconsidering how the State selects its justices in the first place. (20) Famed novelist John Grisham has even used the episode to promote his newest legal thriller. (21) And now, the Supreme Court of the United States has heard the case, and will consider whether Justice Benjamin's participation was unconstitutional. (22)

But, perhaps most troubling, the Massey scandal is not as rare as it might seem. Throughout the twentieth century, the United States has intermittently been scandalized by similar judicial ethics controversies. In the 1940s, Justice Hugo Black's participation in a case (23) tried by his former law partner (from twenty years earlier) drew harsh criticism from his colleague Justice Robert Jackson, and "brought the subject of judicial disqualification sharply into the focus of public and professional attention." (24) In 1972, then-Justice William H. Rehnquist garnered similar criticism for his participation in a case (25) about a federal surveillance program that the government had initiated while Rehnquist worked in the U.S. Department of Justice. (26) Most recently, in 2004, Justice Antonin Scalia drew a veritable firestorm of criticism for sitting in a case (27) against Vice President Dick Cheney, with whom Justice Scalia had recently gone duck hunting. (28)

As the public backlash suggests, these occasional scandals raise an unsettling question: Does U.S. law, as currently practiced, fail to protect litigants from improper participation by biased judges? A recent wave of scholarship suggests that the answer to this question is yes. Some reformers have addressed lawmakers, proposing specific corrections for America's recusal statutes. Nearly every jurisdiction in the United States has created some measure of judicial disqualification (or recusal) (29) law to control the cases that its judges may hear--by forcing them to step down in certain situations. But, if the scholarship examining the scope of these laws is any indication, changes might be necessary. Moreover, others have suggested that the failure to remove certain judges is more than an issue for our congressmen. Indeed, underlying all the criticisms, and behind every public outcry, is the ultimate question of whether the participation of these various judges deprives litigants of their constitutional right to due process of law. This is the question that the Supreme Court will squarely address in the Caperton appeal, and it is the question that this Note evaluates.

Ultimately, however troubling these cases seem, due process is likely not the proper avenue for recusal reform. As established historically and as understood by the Supreme Court, due process provides only a basic floor for recusal standards, above which Congress and the States are left to fill in recusal procedures as they see fit. While this approach potentially leaves several questionable situations unprotected constitutionally--as the various above scandals illustrate--fears over limited recusal rights are in large part overblown. Indeed, the practical effects, potential benefits, and structural implications of a limited due process right to recusal demonstrate that such a right should not trouble the American public. It is simply not the case that due process is the only solution to recusal controversy, and the consequences of a robust due process right suggest that it is indeed an answer that we should hesitate to embrace. If anything, the freedom that a limited right offers to lawmakers, and its restraint from comprehensively "answering" what are exceedingly difficult policy choices, should appeal to the nation's court observers.

In evaluating these claims, this Note proceeds in four parts. Part I reviews the history and development of U.S. recusal law; Part II discusses the Supreme Court's approach to recusal law and describes criticisms of the Court's current jurisprudence; Part III examines specifically what due process requires of recusal; and Part IV evaluates the consequences of a limited due process right, considering its practical effects, its potential benefits, and its structural implications for our federal system of government.

1. JUDICIAL DISQUALIFICATION IN U.S. LAW

   Judicial disqualification procedures existed long before the enactment of our Constitution and its Due Process Clauses, (30) and recusal has always been a part of U.S. law. Like U.S. law in general, our recusal procedures grew out of English common law practice, and over time they have steadily grown and developed. Before turning to the constitutional implications of judicial disqualification, it is useful to briefly outline this progression of U.S. judicial disqualification law, and to highlight both its current practice and its growing critics.

   1. Common Law Origins

      Rooted in the ancient maxim that judges should stand apart from the matter before them, the concept of judicial disqualification "is as old as the history of courts." (31) Both early Jewish law and the Roman Code of Justinian made provisions for the removal of judges on the suspicion of bias, (32) and renowned jurist Henry de Bracton sought to infuse early English common law with similarly broad recusal standards. (33) But, despite his efforts, at the time of the United States' founding, common law recusal practice was, to quote Professor John Frank, "simple in the extreme": a judge was disqualified for his direct financial interest in the case, and for nothing else. (34) Sir William Blackstone directly confronted and rejected the proposition that judges be disqualified merely for suspected bias. (35) Because a judge "is already sworn to administer impartial justice," and because judicial authority "greatly depends upon that presumption and idea," Blackstone placed a heavy burden upon those seeking to impugn a judge's neutrality. (36) These narrow disqualification grounds were further restricted by the common law "rule of necessity," which required that a judge, even with a direct pecuniary interest, hear a case if no adequate substitute was available. (37) In short, early common law tradition required judges to step down in only the narrowest of instances.

   2. Disqualification in Contemporary U.S. Law

      United States law grew out of this common law tradition; however, as U.S. court systems developed, so did our recusal practices. Over time, both federal and state courts significantly broadened their disqualification standards beyond the rigid simplicity of Blackstone's time. (38) Throughout the United States' early independence, the narrow recusal standards of the common law prevailed, (39) but near the turn of the nineteenth century, both federal and state governments began attempts to restrain judicial bias through statutory control. The...