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It is virtually impossible to discuss the Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. without hearing some variant of the following response: “I can’t believe it was as close as it was.” And it does not matter whether you are chatting with your next-door neighbor who had never thought about judicial ethics in his life or discussing the case with a judicial-recusal expert. Nearly everyone seems to agree: Caperton was an “easy” case and that four justices dissented is an indication that there is something terribly wrong. Not only has Caperton elevated the issue of judicial impartiality to the national spotlight, but it has triggered a firestorm: Congress has held hearings examining judicial recusals in light of Caperton; states have grappled with new recusal rules and procedures, as well as changes to state judicial elections; and law schools around the country have held conferences and symposia dedicated to Caperton and judicial ethics. Together with the Court’s earlier ruling in Republican Party of Minnesota v. White, and this year’s decision in Citizens United v. FEC, Caperton is part of a trilogy that will shape our views of judicial independence and accountability for years to come.

This essay argues that Caperton is often misunderstood and concludes that Caperton was not an easy case in large part because the Court rejected the well-established appearances-based recusal standard in favor of a probability-based one that looks at the likelihood of actual bias. And this seemingly minor shift changes the recusal landscape to a greater degree than is or has been appreciated. Furthermore, I argue, Caperton’s probability-based standard may contain a blueprint for an improved recusal framework across state and federal judiciaries.

This essay proceeds in three parts. Part I explains the role that appearances have historically played, and currently play, in recusal decisions in the United States. Today, appearance of partiality, rather than actual fairness, is the key factor in judicial recusal under the federal recusal statutes and state judicial codes. This was not always so.

Part II argues that Justice Kennedy’s majority opinion in Caperton properly limited, if not excluded, the role of appearances from its due process analysis. Some scholars, judges, and commentators, however, have wrongly interpreted Caperton’s “probability of bias” standard to be coterminous with the “appearance of bias” standard that currently controls recusal under federal statutes and state judicial codes. In this part, I will explain why I believe this interpretation is incorrect and why the Court’s opinion should be read to reject an appearance-based disqualification standard under the Constitution’s Due Process Clause.

The final part of this essay discusses the implications of adopting a probability-based — rather than an appearance-based — recusal standard, and how states can use Caperton, and recusal generally, to address the public’s growing concern about the impartiality of an elected judiciary. I argue that in response to Caperton, states should change their recusal procedures — procedural like who reviews motions for recusal, appellate review of recusal decisions, the standard of appellate review, whether a written opinion explaining the recusal decision should be required — tailoring those procedures to the newly-announced probability-based substantive standard for judicial disqualification. In adopting these new recusal procedures, states should pay special focus to appearances, ensuring that the newly-adopted procedure creates an appearance of impartiality and fairness. As a result of greater emphasis on the appearance of procedural fairness, public’s confidence in the judiciary will increase.

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McGeorge Law Review



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