June 8, 2009

Will Caperton facilitate Gableman's recusal?

Probably not, as its holding is very narrowly directed at the particular circumstances of the West Virginia case (or so it claims).

On the other hand, the U.S. Supreme Court this morning in Caperton v. A.T. Massey Coal Co. reaffirmed the vitality of that doctrinal boogeyman* of local conservatives, "New Federalism":
States may choose to "adopt recusal standards more rigorous than [federal] due process requires." . . .

"The Due Process Clause demarks only the outer boundaries of judicial disqualifications. Congress and the States, of course, remain free to impose more rigorous standards for judicial disqualification than those we find mandated here today."
Furthermore Justice Scalia, in lonely dissent, grumbles that not only did the Court not clarify recusal standards under the Due Process Clause, it only succeeded in muddying them further:
Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not.**
So both sides might find some goodies in Caperton (.pdf; 40 pgs.).

* Often complained of, but no reason given for the complaints.

** What in the world is the point of remarks like this, one wonders, aside from Scalia burnishing his legend among the faithful devotees.

Among the "criticisms" of Sonia Sotomayor I've encountered is, "Oh, she's not a colorful prose stylist like Scalia." Having read a number of Sotomayor's opinions, I'm here to tell you that an exhaustive and accurate recitation of the facts followed by a plainspoken framing of the legal questions and then a careful, thorough application of the relevant law to those facts is far more valuable than any "colorful" tale of ghouls running around stabbing the Lemon Test with pencils.

eta: Sorry; come to think of it, the Lemon Test was the ghoul and the judges were the ones stabbing it to zombie-death with the pencils.


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