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	<title>Comments on: SCOTUS: Judges Must Avoid Bias</title>
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		<title>By: Unintended Consequences</title>
		<link>http://www.outsidethebeltway.com/archives/scotus_judges_must_avoid_bias/comment-page-1/#comment-1062044</link>
		<dc:creator>Unintended Consequences</dc:creator>
		<pubDate>Fri, 12 Jun 2009 13:19:53 +0000</pubDate>
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		<description>[...] Monday&#8217;s ruling in Caperton v. Massey Coal Company that &#8220;[e]lected judges must disqualify themselves from cases involving people who spent [...]</description>
		<content:encoded><![CDATA[<p>[...] Monday&#8217;s ruling in Caperton v. Massey Coal Company that &#8220;[e]lected judges must disqualify themselves from cases involving people who spent [...]</p>
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		<title>By: PD Shaw</title>
		<link>http://www.outsidethebeltway.com/archives/scotus_judges_must_avoid_bias/comment-page-1/#comment-1058863</link>
		<dc:creator>PD Shaw</dc:creator>
		<pubDate>Mon, 08 Jun 2009 21:17:02 +0000</pubDate>
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		<description>anderson, I&#039;m disagreeing with the remedy.  The SCOTUS could have reviewed the merits of the case, along with the allegations of financial influence and decided whether the outcome was clearly erroneous (or some other deferential standard of review).  Creating a vague federal right of recusal doesn&#039;t seem to be very helpful.

I haven&#039;t read the case, but where does the case go after it becomes a 2-2 decision?</description>
		<content:encoded><![CDATA[<p>anderson, I'm disagreeing with the remedy.  The SCOTUS could have reviewed the merits of the case, along with the allegations of financial influence and decided whether the outcome was clearly erroneous (or some other deferential standard of review).  Creating a vague federal right of recusal doesn't seem to be very helpful.</p>
<p>I haven't read the case, but where does the case go after it becomes a 2-2 decision?</p>
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		<title>By: Anderson</title>
		<link>http://www.outsidethebeltway.com/archives/scotus_judges_must_avoid_bias/comment-page-1/#comment-1058836</link>
		<dc:creator>Anderson</dc:creator>
		<pubDate>Mon, 08 Jun 2009 21:00:32 +0000</pubDate>
		<guid isPermaLink="false">http://www.outsidethebeltway.com/?p=37414#comment-1058836</guid>
		<description>&lt;em&gt;Doesn’t this logically mean you can’t have elected judges?&lt;/em&gt;

Not quite.  I would think that relatively few judges would owe quite so much to a single contributor, and of those, I would hope the vast majority would have the decency to recuse, or (as in Mississippi) would be forced to recuse by their fellow judges.

&lt;em&gt;the highest decisions of the state courts are reviewable by the SCOTUS.&lt;/em&gt;

Only on issues of federal law.  The merits of the Caperton case were, IIRC, purely state law.  The only federal issue was the due-process issue re: recusal, which as we can see was indeed appealed.</description>
		<content:encoded><![CDATA[<p><em>Doesn&rsquo;t this logically mean you can&rsquo;t have elected judges?</em></p>
<p>Not quite.  I would think that relatively few judges would owe quite so much to a single contributor, and of those, I would hope the vast majority would have the decency to recuse, or (as in Mississippi) would be forced to recuse by their fellow judges.</p>
<p><em>the highest decisions of the state courts are reviewable by the SCOTUS.</em></p>
<p>Only on issues of federal law.  The merits of the Caperton case were, IIRC, purely state law.  The only federal issue was the due-process issue re: recusal, which as we can see was indeed appealed.</p>
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		<title>By: PD Shaw</title>
		<link>http://www.outsidethebeltway.com/archives/scotus_judges_must_avoid_bias/comment-page-1/#comment-1058824</link>
		<dc:creator>PD Shaw</dc:creator>
		<pubDate>Mon, 08 Jun 2009 20:51:57 +0000</pubDate>
		<guid isPermaLink="false">http://www.outsidethebeltway.com/?p=37414#comment-1058824</guid>
		<description>I have not read the opinion, but the fact that it was a 3-2 vote, indicates to me that it was an issue that reasonable judges might disagree.  Were the other 2 votes bought?

There is a better approach, the highest decisions of the state courts are reviewable by the SCOTUS.  If a party aggrieved by the decision believed that due process was violated because the decision was in error due to financial bias on the court, the SCOTUS can review it to see if there was corrupt influence or if the decision was supported by the record.

The problem with recusals is that it works against one of the main protections against bias on appeals:  a five-to-nine member panel.</description>
		<content:encoded><![CDATA[<p>I have not read the opinion, but the fact that it was a 3-2 vote, indicates to me that it was an issue that reasonable judges might disagree.  Were the other 2 votes bought?</p>
<p>There is a better approach, the highest decisions of the state courts are reviewable by the SCOTUS.  If a party aggrieved by the decision believed that due process was violated because the decision was in error due to financial bias on the court, the SCOTUS can review it to see if there was corrupt influence or if the decision was supported by the record.</p>
<p>The problem with recusals is that it works against one of the main protections against bias on appeals:  a five-to-nine member panel.</p>
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		<title>By: just me</title>
		<link>http://www.outsidethebeltway.com/archives/scotus_judges_must_avoid_bias/comment-page-1/#comment-1058820</link>
		<dc:creator>just me</dc:creator>
		<pubDate>Mon, 08 Jun 2009 20:44:03 +0000</pubDate>
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		<description>This decision doesn&#039;t bother me that much-I think sometimes the appearance of bias is just as bad as bias itself-and this is pretty much why there is recusal process for judges in this situation.  I am sure a lot of judges-probably most judges who choose to recuse themselves do so more for appearance of bias than that they can&#039;t fairly judge the case at hand.

I think of the course the problem is that there isn&#039;t a clear line to judge when recusal is necessary.  Personally I am not a huge fan of elected judges, but there are problems that come with an appointment process as well-I suspect appointment processes are more expensive and elections are cheaper, so at a local level elections may make more sense.</description>
		<content:encoded><![CDATA[<p>This decision doesn't bother me that much-I think sometimes the appearance of bias is just as bad as bias itself-and this is pretty much why there is recusal process for judges in this situation.  I am sure a lot of judges-probably most judges who choose to recuse themselves do so more for appearance of bias than that they can't fairly judge the case at hand.</p>
<p>I think of the course the problem is that there isn't a clear line to judge when recusal is necessary.  Personally I am not a huge fan of elected judges, but there are problems that come with an appointment process as well-I suspect appointment processes are more expensive and elections are cheaper, so at a local level elections may make more sense.</p>
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		<title>By: Brien Jackson</title>
		<link>http://www.outsidethebeltway.com/archives/scotus_judges_must_avoid_bias/comment-page-1/#comment-1058814</link>
		<dc:creator>Brien Jackson</dc:creator>
		<pubDate>Mon, 08 Jun 2009 20:24:19 +0000</pubDate>
		<guid isPermaLink="false">http://www.outsidethebeltway.com/?p=37414#comment-1058814</guid>
		<description>&quot;Doesn’t this logically mean you can’t have elected judges?  Counterintuitive as it may be, the scholarly literature I have seen on the matter — and, admittedly, I haven’t kept up with it in recent years — found no significant difference between how elected and appointed judges rule.&quot;

There was a study done pretty recently that showed pretty conclusively that elected judges side with in state parties over out of state parties a highly disproportionate number of cases. I don&#039;t remember if it compared the number to the rate of appointed judges or not.

I agree that the larger reasoning in the opinion begs a lot of questions, but the decision itself seems pretty obvious.</description>
		<content:encoded><![CDATA[<p>"Doesn&rsquo;t this logically mean you can&rsquo;t have elected judges?  Counterintuitive as it may be, the scholarly literature I have seen on the matter — and, admittedly, I haven&rsquo;t kept up with it in recent years — found no significant difference between how elected and appointed judges rule."</p>
<p>There was a study done pretty recently that showed pretty conclusively that elected judges side with in state parties over out of state parties a highly disproportionate number of cases. I don't remember if it compared the number to the rate of appointed judges or not.</p>
<p>I agree that the larger reasoning in the opinion begs a lot of questions, but the decision itself seems pretty obvious.</p>
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		<title>By: PD Shaw</title>
		<link>http://www.outsidethebeltway.com/archives/scotus_judges_must_avoid_bias/comment-page-1/#comment-1058811</link>
		<dc:creator>PD Shaw</dc:creator>
		<pubDate>Mon, 08 Jun 2009 20:09:41 +0000</pubDate>
		<guid isPermaLink="false">http://www.outsidethebeltway.com/?p=37414#comment-1058811</guid>
		<description>&lt;blockquote&gt;But how does one know what a higher court will judge “exceptional” a priori?&lt;/blockquote&gt;

Classic Kennedy, the only one who knows the line is him.  He is the decider.</description>
		<content:encoded><![CDATA[<blockquote><p>But how does one know what a higher court will judge “exceptional” a priori?</p></blockquote>
<p>Classic Kennedy, the only one who knows the line is him.  He is the decider.</p>
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		<title>By: Eric Florack</title>
		<link>http://www.outsidethebeltway.com/archives/scotus_judges_must_avoid_bias/comment-page-1/#comment-1058796</link>
		<dc:creator>Eric Florack</dc:creator>
		<pubDate>Mon, 08 Jun 2009 19:45:16 +0000</pubDate>
		<guid isPermaLink="false">http://www.outsidethebeltway.com/?p=37414#comment-1058796</guid>
		<description>&lt;blockquote&gt;“Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause,” Justice Anthony Kennedy said for the court.&lt;/blockquote&gt;

...
&lt;blockquote&gt;Doesn’t this logically mean you can’t have elected judges?&lt;/blockquote&gt;

I wonder; Might that principle also be extended to include a judge who makes statements which could arguably be taken as pushing the agenda of group identiies of whch she claims membership?
 
Such as, Female and Racial Minority, for example?

Hmmmm.</description>
		<content:encoded><![CDATA[<blockquote><p>“Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause,” Justice Anthony Kennedy said for the court.</p></blockquote>
<p>...</p>
<blockquote><p>Doesn&rsquo;t this logically mean you can&rsquo;t have elected judges?</p></blockquote>
<p>I wonder; Might that principle also be extended to include a judge who makes statements which could arguably be taken as pushing the agenda of group identiies of whch she claims membership?</p>
<p>Such as, Female and Racial Minority, for example?</p>
<p>Hmmmm.</p>
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