When Caperton v. Massey came before the U.S. Supreme Court in June 2009, the Court ruled that the due process right to a fair trial required Justice Benjamin to recuse himself. Many commentators view Caperton as a limited decision because it set stringent criteria for future due process recusal claims, but the revolutionary ferment surrounding judicial elections could make Caperton-style fact patterns more common in the years to come. The fundamental fears that the Court expressed—that impartial justice and public confidence in the courts could be imperiled—will be stoked and aggravated by the financial arms race that now accompanies judicial elections. The new politics of judicial elections made a Caperton fact pattern inevitable. As court campaigns grow more corrosive, lower courts will have more opportunities to apply and expand Caperton’s principles to enforce recusal more seriously. As a result, Caperton could mark the tangible beginning of a new consciousness about the role of money in judicial elections.
Bert Brandenburg, Inevitable, Flexible, Expandable Caperton?, 33 SEATTLE U. L. REV. 617 (2010).