The Recusal of American Judges in the Post-Caperton Era: An Empirical Assessment of the Risk of Actual Bias in Decisions Involving Campaign Contributors

Palmer, Vernon V.
October 2010
Global Jurist;Oct2010, Vol. 10 Issue 3, p6
Academic Journal
This article is an empirical investigation of the relation between campaign contributions and the ability of elected judges to remain impartial in their rulings. Its principal aim is to assess the risk to impartiality that unrecused rulings in favor of contributors may entail. The tense if not conflictual relationship between campaign support and judicial detachment became a national issue in 2009 when the Supreme Court ruled, for the first time, in Caperton v. A.T. Massey Coal Co., that a state judge's refusal to disqualify himself after receiving extraordinary campaign support from a litigant violated the Due Process Clause of the Constitution. The present study, building upon the approach charted in Caperton, focuses in depth upon one state supreme court's experience with contributor cases. The study follows the voting behavior of the seven Justices of the Louisiana Supreme Court (as constituted in 2006) over a 14-year period. The carefully checked database, consisting of more than 10,000 entries derived from 177 cases involving contributors, presents striking insights about the risks involved in unrecused voting. The entire database is included with the article. Far from undermining Caperton's thesis, it demonstrates that far smaller contributions also create a risk of actual bias and that the relative size of a donation, in comparison to overall campaign funds and expenditures, is not a necessary component of the risk. The value-added of this empirical contribution to the national issue is essentially three-fold. First, it lays out a detailed factual tableau concerning the size, scope and timing of contributions. Here is a mine of vital information that may serve as a predicate for analysis and reform. Second, in line with the "risk" calculus charted in Caperton, the article presents statistical measurements and new methods of comparison to gauge the likelihood of actual bias in judicial voting behavior. The statistical calculations based on the data were verified and replicated by the Center for Empirical Research in the Law in St. Louis. Third, it carries the analysis beyond the relatively easy Caperton facts and examines the risk factor in the everyday cases before the courts. Thus, it addresses the typical and more difficult questions needing to be discussed and dealt with in the future, whether by the Supreme Court in revisiting the constitutional issue or by state legislatures, state courts and professional bodies in their reform efforts.


Related Articles

  • DEMOCRACY AT THE CORNER OF FIRST AND FOURTEENTH: JUDICIAL CAMPAIGN SPENDING AND EQUALITY. Sample, James // New York University Annual Survey of American Law;2011, Vol. 66 Issue 4, p727 

    The article discusses the issues of judicial campaign spending and equality in the court case Caperton v. A. T. Massey Coal Co. in the U.S. It explains the decision of the Supreme Court that substantial independent expenditures in support of a judicial candidate can pose threats to court...

  • Reciprocity, Denial, and the Appearance of Impropriety: Why Self-Recusal Cannot Remedy the Influence of Campaign Contributions on Judges' Decisions. Susman, Thomas M. // Journal of Law & Politics;Spring2011, Vol. 26 Issue 3, p359 

    The system of privately financed elections of judges in most states across the country has long been controversial, with both the scholarship and advocacy relating to this subject directed toward identifying the problems of public perception and potential for biased decisions and then focusing...

  • A Jurist and a Lawyer Consider Judicial Recusal After Caperton. Smith, Judge N. Randy; Peck, Robert S. // Judges' Journal;Summer2013, Vol. 52 Issue 3, p26 

    In this article, the authors share their views on the issue of judicial disqualification in context to the U.S. Supreme Court decision of 2009 in Caperton v. A.T. Massey Coal Co. Smith mentioned that Caperton case supported the judicial recusal matters and in the findings of impartiality under...

  • Is Judicial Disqualification an Issue of Ethics or of Law? Greenstein, Marla N. // Judges' Journal;Summer2013, Vol. 52 Issue 3, p40 

    The article presents an analysis of the issues related to judicial disqualification to analyze the difference between law and ethics. It explores the Code of Judicial Conduct provisions and ethical standards thereby interpreting the ethical issues and legal issues of judicial recusal in context...

  • COURT REFORM ENTERS THE POST-CAPERTON ERA. Sample, James // Drake Law Review;Spring2010, Vol. 58 Issue 3, p787 

    The article discusses the state court reform in the U.S. following the Supreme Court's decision in Caperton v. A.T. Massey Coal Co. case and the congressional interest in judicial disqualifications. It mentions the initial developments pertaining to the judicial campaigns of the three states...

  • IF YOU SPEAK UP, MUST YOU STAND DOWN: CAPERTON AND ITS LIMITS. Esenberg, Richard M. // Wake Forest Law Review;Winter2010 II, Vol. 45 Issue 5, p1287 

    The article discusses the issue of judicial bias at a court's decision over the Caperton-A.T. Massey Coal Co. case and the limits of applying recusal. It relates a proceeding when lawyer Brent Benjamin, who won a judicial election prior to Massey head Don Blankenship, refused to recuse leading...

  • Rethinking "Bias": Judicial Elections and the Due Process Clause After Caperton v. A.T. Massey Coal Co. Sandberg-Zakian, Eric // Arkansas Law Review (1968-present);2011, Vol. 64 Issue 1, p179 

    The article reviews the court case Caperton v. A.T. Massey and Coal Co. and asserts that the Caperton Court's uncritical embracing of an anti-bias perspective undermines the very practice of selecting judges. The author asserts that bias is, in fact, the mechanism by which elected judiciaries...

  • HISTORY OF AND PROBLEMS WITH THE FEDERAL JUDICIAL DISQUALIFICATION FRAMEWORK. Flamm, Richard E. // Drake Law Review;Spring2010, Vol. 58 Issue 3, p751 

    The article scrutinizes the judicial system in the U.S., giving emphasis on federal judicial disqualification law. It also offers the history of judicial disqualification law and the problems arises following several cases including Caperton v. A.T. Massey Coal Co., Berger v. United States and...

  • Changing the Rules of the Game : Deriving New Rules and Practices from Caperton v. A.T. Massey Coal Co. MCLEOD, AMAN L. // New England Law Review;Spring2011, Vol. 45 Issue 3, p569 

    The article discusses the court case Caperton v. A.T. Massey Coal Co. and the reforms and practice guidelines that can be derived from the case. In response to the ruling that judges must recuse themselves in cases that involve persons who invested great financial support to their campaign, the...


Read the Article


Sorry, but this item is not currently available from your library.

Try another library?
Sign out of this library

Other Topics