Caperton vs. Massey

Now that the US Supreme Court has ruled 5 to 4 that actual bias is not the standard to determine recusal of an appellate judge under the due process clause but rather judges must consider the appearance of bias based on the totality of the circumstances, does this mean that a Caperton motion can be filed in the US Supreme Court?

I seem to recall that Justice Scalia went hunting with then Vice President Cheney when a case involving the Vice President was before the high court.  If a Caperton motion is filed there and denied, where does the moving party go?  The World Court in the Hague? 

As a side note, in the Benjamin election I put the impact of the Blankenship money third on the list of factors which influenced the election.  By far, the largest driving factor behind Justice McGraw’s defeat was the bruising primary fight he had with Judge Rowe.  In other words, if Judge Rowe had not run in the primary, I don’t think Justice Benjamin would have been elected.  The second “driver” in Benjamin’s victory was the “Rant in Racine” ads which were the product of the Benjamin campaign not Don Blankenship.  For the Sake of the Kids is a distant third.

Unfortunately, this decision makes it harder to continue to elect judges by popular vote.  The only people who will give money in a judicial election race are lawyers or groups that have a stake in judicial decisions.  Under the newly announced Caperton standard, the results of every judicial race will generate data and “fodder” for Caperton motions.

The only way to avoid this Pandora’s Box which the US Supreme Court has given us is to change the way we select judges.  Non-partisan races (the current most popular option) won’t cure the Caperton problem.  This leaves the federal method, nomination by the executive and confirmation by the equivalent of the senate.  Unfortunately, a constitutional amendment to do that in West Virginia will never pass.

So, more litigation, more lawyer fees, more time consumed in court dealing with Caperton motions.  The US Supreme Court will shy away from granting review in Caperton decisions but that merely means the law in this area will be developed in the federal courts of appeal.  What a waste.

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