Judges frequently come under fire in the court of public opinion for their failure to recuse. Justice Scalia was the subject of a media firestorm in 2004 when he refused to recuse himself from a case involving Vice President Dick Cheney after he and the Vice President had gone duck hunting together while the case was pending. In the Ninth Circuit, by contrast, Chief Judge Alex Kozinski recused himself from an obscenity trial after the Los Angeles Times reported that his personal website contained sexually explicit images. The Third Circuit conducted an investigation and found that while Judge Kozinski did not intend for the images to be publicly accessible, his behavior was careless, judicially imprudent, and deserving of admonishment. However, the court declined to address Judge Kozinski’s decision to recuse.
Media hue and cry notwithstanding, a judge’s decision to recuse or not to recuse from a case is rarely subject to review by other judges. For West Virginia Supreme Court of Appeals Justice Brent Benjamin, however, this usual rule did not apply. Justice Benjamin was roundly criticized by the media when he failed to recuse himself from a case where one party had contributed large sums to a political action committee that had supported Justice Benjamin in his election campaign. In June 2009, the Supreme Court of the United States held in Caperton v. A. T. Massey Coal Co. that the Due Process Clause required Justice Benjamin to recuse himself from the case. The Court had never before considered the requirements of due process in the judicial election context. Since thirty-nine states elect at least some of their judges, the intersection between judicial election donations and constitutionally mandated recusal is potentially of widespread importance.
Part II.A of this Comment examines state judicial codes and the federal recusal statute. Part II.B examines the situations in which the Supreme Court has held that due process requires recusal. Parts II.B.1 and II.B.2 analyze the two categories of situations which the Court has historically found violate the Due Process Clause: a judge’s pecuniary interest in the case’s outcome and a judge’s personal embroilment in a criminal contempt proceeding. Part II.B.3.a looks closely at the Court’s recent decision concerning Justice Benjamin’s failure to recuse in Caperton. Part II.B.3.b surveys courts’ responses in the aftermath of the Caperton decision.
Part III.A of this Comment argues that Caperton made due process more stringent than it had been under the Court’s older recusal precedents. Part III.B.1 further asserts that Caperton renders most state recusal codes and the federal recusal statute indistinguishable from the due process floor. Despite the Caperton Court’s problematic reasoning, Part III.B.2 concludes that raising the due process floor to comport with recusal codes achieves a definition of due process that is more in line with popular notions of what comprises the constitutional guarantee of a fair trial.