I hesitate to disagree with the great former Fourth Circuit judge J. Michael Luttig. But I respectfully must do so on the question whether the Supreme Court’s 2009 ruling in Caperton v. A.T. Massey Coal Co. has any meaningful bearing on whether Amy Coney Barrett, once appointed as a justice, would have to recuse herself from election-related litigation.
In this Washington Post op-ed, Judge Luttig contends that the Supreme Court’s 2009 ruling in Caperton “would seem to apply squarely to Barrett’s recusal decision and could well require, or at least counsel, her recusal.”
Let me first highlight two points in Luttig’s op-ed with which I agree. First, he opines that “Barrett rightly deflected Democratic senators’ demands that she commit in advance to recusal, wisely promising instead to seriously consider the question should it arise.” (Folks on the Left citing his op-ed seem to pass over this point.) Second, he describes the 5-justice majority opinion in Caperton as “inartful and mischievous.”
But “inartful and mischievous” as it is, the majority’s opinion in Caperton squarely addresses a “problem [that] arises in the context of judicial elections,” and its Due Process Clause holding is set forth expressly in that context (emphasis added):
We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.
As the majority sums up the facts, the three million dollars in contributions that Don Blankenship, chairman of A.T. Massey Coal Company, made to the campaign of Brent Benjamin to be elected a justice of the West Virginia supreme court “were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee.”
In rejecting arguments that its holding would have “various adverse consequences … ranging from a flood of recusal motions to unnecessary interference with judicial elections,” the majority stated:
The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case.
As Luttig points out, Chief Justice Roberts in his dissent raises the question “whether the new probability of bias standard [under the Due Process Clause] is somehow limited to financial support in general elections, or applies to judicial recusal questions more generally.” But it’s one thing for a dissent to point out that the rationale underlying a majority’s holding could conceivably have implications beyond the context that the majority defines. It’s quite another for Luttig to contend that the actual ruling in Caperton—which rests on “all the circumstances of this case,” including the context of judicial elections”—“would seem to apply squarely to Barrett’s recusal decision.”
Further, it seems clear that the Court has already implicitly rejected such an expansive reading of Caperton: The influence that Blankenship had on Benjamin’s election is dwarfed by the influence that every appointing president has in appointing justices and judges. Yet, in the immediate aftermath of Caperton, Justice Sotomayor and Justice Kagan did not recuse themselves from deciding the constitutionality of President Obama’s signature domestic achievement in NFIB v. Sebelius. Nor did any other justice suggest that they had any obligation to do so. I’m also not aware of any scholar of judicial ethics who ever argued that Obama’s role in putting them on the Court (as distinct, say, from Kagan’s role as Obama’s solicitor general in developing the litigation strategy to defend Obamacare) required recusal.
A Justice Barrett should indeed “seriously consider the question” of recusal under 28 U.S.C. § 455 if and when occasion to do so arises. But I don’t see how the Caperton ruling would play any significant role in such consideration.