Saturday, August 2, 2008
Posted by Alan Childress
Mike Frisch has been following the ebbs and flows of the judicial bias accusations against members of the highest court of West Virginia (e.g., here; and see LEF's post here). In particular, last week Mike posted here on the recent decision by one justice not to recuse himself in a case involving a major contributor. And I previously posted on a NY Times' column's similar worry about elected Ohio and Louisiana judges.
Now Marcia Coyle of The National Law Journal, also published on Law.com here (dated Aug. 4), writes about an interesting petition for writ of certiorari to the U.S. Supreme Court filed in one non-recusal case (that matter discussed here), arguing that a lack of due process violates the U.S. Constitution. The article is called High Court Review Sought on Judicial Recusals: W. Va. case triggers key ethical query. One quote:
"[T]here will be rare cases where campaign expenditures by a litigant create a constitutionally unacceptable appearance of impropriety. This is such a case," contends former Solicitor General Theodore B. Olson, co-chairman of the appellate and constitutional law group in the Washington office of Los Angeles' Gibson, Dunn & Crutcher.
The case necessarily raises the question of the reach and limits of "a key high court precedent -- argued and won by [Ted] Olson in 1986 -- [which] held that due process requires recusal only when a judge has a 'direct, personal, substantial, pecuniary interest' in the case before him. Aetna Life Insurance v. Lavoie, 475 U.S. 813."
This justice's July 28, 2008 concurrence (the pdf is in full), and having him participate on the merits, suggests that such a line was not crossed. The really-vitriolic dissents are here and here. For example, one notes, "I am one judge voting on this case who can say that I owe nothing to Mr. Blankenship [defendant's CEO and the major contributor noted above] one way or another -- he did nothing to hurt or hinder my election. He did not fund my campaign, nor am I a social friend of his." The other says, in all bold not reproduced here: "The point is that the majority went out of its way to make findings that fit its intended result rather than the justice of the cause." The majority opinion, in full pdf, is here. (One might assume that the substantive law dispute among the justices is on some exciting area of law, but actually it turns mainly on the proper standard of appellate review to apply to enforcement of forum selection clauses, a dry but often-crucial topic.)
The further question is whether the U.S. Supreme Court wants to get into the ethics issue as a matter of federal constitutional law. I am guessing it does not. I believe that the justices will use the argument that such extreme cases are "rare" -- turning it around -- to avoid granting cert. Rare and messy.