Comments on: U.S. Supreme Court Finds Constitution Requires Judicial Recusal

By: Citizens United and Judicial Elections

Citizens United and Judicial Elections — Thu, 21 Jan 2010 21:31:45 +0000

[...] But the decision may hit closer to home. Professor Rick Hasen brings some attention to the effect that Citizens United may have on judicial elections, especially in light of Caperton v. A.T. Massey Coal: [...]

By: Winning on appeal isn’t everything: Massey Coal and Kelo disappoint the winners

Fri, 13 Nov 2009 15:35:51 +0000

[...] discussion of the U.S. Supreme Court’s opinion is here. An earlier post about Caperton and last spring’s debate about merit selection of judges in [...]

By: Jeff N.

Jeff N. — Wed, 10 Jun 2009 18:44:59 +0000

Thanks, Don. That's what I thought you meant. Sorry to yank your chain.

I agree that the due process route is not the most efficacious. Your point about tweaking our rules is, I think, exactly what Justice Kennedy would rather see. His opinion seems to invite that.

By: Don Cruse

Don Cruse — Mon, 08 Jun 2009 21:21:26 +0000

Of the different ways to make that point, I probably chose one of the less artful. There was no doubt a protected property interest here.

My point was that the Due Process Clause is usually about protecting litigants from erroneous deprivations of that property interest.

In moving to the "appearance of bias" standard of proof, the Court is (indirectly) protecting the court system from disparagement at least as much as it is (directly) protecting litigants.

It's that broader, structural-reform goal that I meant to suggest has not traditionally been the role of the Due Process Clause.

I'm all for protecting the court system from itself. But I'll be pleasantly surprised if this goes smoothly.

By: Jeff N.

Jeff N. — Mon, 08 Jun 2009 20:17:32 +0000

Nice post.

"The test seems to boil down to the appearance of bias. The Court cannot quite say that, because that is actually not one of the interests protected by the Due Process Clause."

But isn't the appearance of bias a concern in cases like this because it implicates the "due process of law," itself? I don't think it can be disputed this case involves a protected property interest (a $50 million judgment).