sonableness complaint that aren’t
way out in left field, then that certainly could trigger a situation that
could give rise to a recusal,” Clevert
In Missouri, state supreme court
Judge Michael A. Wolff compares
motions for disqualification to juror
selection in high-profile cases,
where prospective panelists are
asked whether they can set aside
outside knowledge and decide the
case as it’s presented in court.
“When the guy says yes, we usually go ahead and let him be seated,”
Wolff says. Judges especially need to
apply that standard to the lawyers
who appear before them, he says.
“Judges have special connections
with lawyers,” Wolff explains.
“That’s who our friends are. That’s
who we went to law school with.
‘Can I set it aside?’ If a judge says,
‘Yes, I can,’ then he probably can go
ahead and sit. But you know what?
It can look bad.
“If you can’t explain it in a simple
sentence, then you probably have
something bad,” he says. This is
where the similarity to jury selection ends.
“Nobody cares who the juror is,”
Wolff says. “At the end of the case
he goes home. He’s anonymous. But
the judge has a higher calling to set
WEIGHING THE RECUSAL
IN 2003 THE ABA OFFERED UP ANOTH-
er, even stricter addition to the
Model Code—since adopted in 11
states—requiring recusal when
judges make statements outside
court that appear to predispose them
to rule a particular way in certain
kinds of cases. In 2002, the Supreme
Court held in Republican Party of
Minnesota v. White that such restrictions violate the First Amendment
speech rights of judicial candidates.
Indiana University law professor
Charles Geyh, author of a report
supporting the ABA recommendations, says the states have yet to
demonstrate a full understanding
of the White case.
“When it does come, it will be
harder to disqualify judges because
it puts them at odds with the electorate when you can’t do what you
promised,” says Geyh.
The dearth of case law or other
documentation also makes it tough
to determine exactly why judges reject disqualification attempts. Geyh’s
report offers some suggestions.
Judges, he says, may refuse motions because they truly believe they
can act fairly. Others may decline if
they detect an attempt to gain a
more sympathetic venue.
In some cases, clever court operators could try to force recusals of
unsympathetic judges by seeding
their campaign funds with donations. And granting a recusal motion
could seem an endorsement of
Most often, however, lawyers are
reluctant to ask for recusal for fear
“I always say if you’re going to
shoot the tiger, you’d better kill the
tiger,” Wolff says. “If you don’t kill
the tiger, then you’re going to have
one angry tiger.”
While disqualification proceedings usually go unnoticed in the
shadows, many potential conflicts,
such as modest campaign giving,
simply don’t rise to the level of
Caperton’s lawyers could face
questioning from the Supreme
Court justices on what amounts may
affect due process and thus open a
disqualification inquiry. Though
White addressed verbal comments
by candidates, the justices also have
long held that campaign donations
are a form of First Amendment expression. But cases like the $3 million lunker from West Virginia are
hard to hide.
“The magnitude and timing of the
campaign contributions here gave
Justice Benjamin, in appearance if
not in fact, a personal interest in the
outcome of this case,” the ABA argued in an amicus brief supporting
Caperton’s cert petition. “If the facts
of this case do not implicate due
process concerns, then few judicial
contribution cases ever will.”
Caperton’s lawyers call the case
one of a kind. Though Massey CEO
Blankenship apparently had shown
little interest in donating to other
political campaigns for statewide offices like governor or the legislature,
he didn’t mess around in channeling
millions of dollars and other means
of support to elect Benjamin.
In motions asking Benjamin to re-cuse himself, Caperton’s lawyers recited Blankenship’s fundraising and
spending in head-throbbing detail.
One version regurgitates a 26-page
chunk of factual recitations and argument along with 84 appendices
“It’s been surreal—what happened in that litigation,” says
Caperton lawyer David B. Fawcett
of Pittsburgh. “We’ve never seen
anything like what occurred.”
UPPING THE ANTE
AS HIS OPTIONS BEGAN TO WANE FOR
getting the $50 million judgment reduced or tossed out, Blankenship
moved quickly. In August 2004 he
formed a section 527 organization—
so named for the part of the Internal
Revenue Code that allows such
groups to collect money to support
or oppose candidates.
Blankenship’s 527, called And
for the Sake of the Kids, was designed not to work for Republican
challenger and political novice
Benjamin, but to use televised attack ads to work for the defeat of
Warren McGraw, the Democratic incumbent. McGraw was under intense public heat for joining an
unsigned opinion that placed a convicted child molester on probation.
Blankenship also maintained that
“anti-business rulings” by McGraw
poisoned the Mountain State’s economic climate.
Of the $3.6 million the group
raised, $2.4 million came from
Blankenship, with 25 other contributors uniting to shell out the remaining $1.1 million. The organization
ranked fifth nationally among other
527s in the amount raised in a state
election. Blankenship also contributed $515,000 in direct support