# Supremes Rules That Judge Should Have Recused Himself **URL:** \ **Category:** Great Debates\ **Created:** [June 9, 2009, 7:35pm UTC](https://boards.straightdope.com/t/supremes-rules-that-judge-should-have-recused-himself/499235 "2009-06-09T19:35:50Z")\ **Posts on this page:** 15\ **Page:** 2
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 11, 2009, 12:18pm UTC](https://boards.straightdope.com/t/supremes-rules-that-judge-should-have-recused-himself/499235/21 "2009-06-11T12:18:22Z")
> [@](#): > > But it was Secretary of State Madison who refused to deliver them, triggering the application for mandamus. The fact that something doesn’t get done when a person leaves office is not in itself a problem; it was the actual refusal by the new incumbent. I’m familiar with the case. But it is an example of a situation where a judge was directly and significantly involved in the chain of events that caused the case to occur yet still felt he could rule on the case. Voyager wrote the OP described the biggest conflict of interest he could imagine: I was pointing out a larger one. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 11, 2009, 12:54pm UTC](https://boards.straightdope.com/t/supremes-rules-that-judge-should-have-recused-himself/499235/22 "2009-06-11T12:54:43Z")
I’m afraid I disagree with your assessment. A judge taking money from one of the plaintiffs strikes me as the biggest possible conflict of interest. In fact, the traditional view of the common law in the 18th and early 19th centuries was that the only basis for disqualifying a judge was that the judge had a pecuniary interest in a case. Under the common law, judges could even sit in appeal from their own decisions. So by the standards of his time, I don’t think Marshall C.J. was in a conflict. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 11, 2009, 1:01pm UTC](https://boards.straightdope.com/t/supremes-rules-that-judge-should-have-recused-himself/499235/23 "2009-06-11T13:01:40Z")
> [@jtgain](#): > > That being said, my understanding was that the intention of the 14th amendment was in response to the “black codes” being passed by the southern states. The idea was that no more could we have two classes of citizens in this country when it comes to the law, and that there would be a federal remedy for that. Two comments: - the black codes may have been one of the factors that contributed to the decision to enact the 14th Amendment, but legislation is sometimes passed that addresses a more general concern that is triggered by a specific example. It may have been the people who drafted and enacted the 14th Amendment recognized that if they passed an amendment specifically tailored to the black codes and nothing more, the southern legislators would then come up with more innovative ways to deny non-whites access to justice. So instead, they put in a general guarantee of due process. - if barring two classes based on race was all that was intended, there would be no need for the due process clause; that could have been achieved by the equal protection clause of the 14th Amendment. The fact that the Amendment includes both a due process clause and an equal protection clause is a strong indication that the drafters wanted to do more than just bar the concept of two classes. They wanted to set a national standard of due process, available to all citizens of the United States, in all their dealings with state governments. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 13, 2009, 7:46pm UTC](https://boards.straightdope.com/t/supremes-rules-that-judge-should-have-recused-himself/499235/24 "2009-06-13T19:46:57Z")
To be slightly more specific, they evidently wanted to extend the due process standard, available in Federal courts since 1789 under the Fifth Amendment, to all proceedings, as an el;ement of ensuring that the states (focus on the Reconstructed southern states here) would assure due process to all their citizens. While many states were guaranteeing this by their state constitutions and/or bills of rights, the Recent Unpleasantness had brought home to (Northern) Congressmen that one could not count on the states to do so – particularly the Southern states as they were at the time with their newly freed and encitizenified black inhabitants. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 17, 2009, 4:25pm UTC](https://boards.straightdope.com/t/supremes-rules-that-judge-should-have-recused-himself/499235/25 "2009-06-17T16:25:38Z")
So, I will venture that nobody can come up with one single power that is exclusively reserved to the states? ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [June 17, 2009, 4:37pm UTC](https://boards.straightdope.com/t/supremes-rules-that-judge-should-have-recused-himself/499235/26 "2009-06-17T16:37:22Z")
> [@jtgain](#): > > [http://onthedocket.org/articles/2009/06/08/divided-court-finds-judge-should-have-recused-himself-donor-case-june-8-2009...What](http://onthedocket.org/articles/2009/06/08/divided-court-finds-judge-should-have-recused-himself-donor-case-june-8-2009...What) if West Virginia simply gave a winning verdict to the side that paid the most money? So what? Wouldn’t that be equal under the 14th in that any party who paid the money could win, thereby equal? Why is it a federal matter?.. The Constitution offers equal protection to citizens, not to dollar bills. ---
**Author:** ![Nametag](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nametag/32/406_2.png) [@Nametag](https://boards.straightdope.com/u/Nametag)\ **Post date:** [June 20, 2009, 9:40pm UTC](https://boards.straightdope.com/t/supremes-rules-that-judge-should-have-recused-himself/499235/27 "2009-06-20T21:40:33Z")
I’m actually going to go with the conservative faction on this one. I’m generally pretty expansive in my view of Supreme Court cases, but this isn’t the sort of thing I’m sympathetic to. There is NO conflict of interest in this case. None. There MAY be bias – we’ll never know. But a conflict of interest? How? The judge has already been elected – he stands to gain nothing from this case. The decision to recuse would require that the judge feel such overwhelming gratitude to his donor that it would override his judicial reasoning. It’s more likely that the judge was known for his predilections in such cases, and was favored by his donor for that reason. ---
**Author:** ![Captain\_Carrot](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@Captain\_Carrot](https://boards.straightdope.com/u/Captain_Carrot)\ **Post date:** [June 20, 2009, 9:53pm UTC](https://boards.straightdope.com/t/supremes-rules-that-judge-should-have-recused-himself/499235/28 "2009-06-20T21:53:17Z")
> [@Nametag](#): > > There is NO conflict of interest in this case. None. There MAY be bias – we’ll never know. But a conflict of interest? How? The judge has already been elected – he stands to gain nothing from this case. Presumably he wishes to be reelected, and ruling against the man who did a great deal to help elect him would make it a lot harder to get that money in the future. > [@Nametag](#): > > The decision to recuse would require that the judge feel such overwhelming gratitude to his donor that it would override his judicial reasoning. You’re setting a very high standard for recusal here. It is important that the judicial system be seen as having no hint of impropriety, and one side of the case having contributed heavily to one of the judges’ election bid looks pretty damn fishy to me. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 20, 2009, 11:32pm UTC](https://boards.straightdope.com/t/supremes-rules-that-judge-should-have-recused-himself/499235/29 "2009-06-20T23:32:59Z")
> [@Captain\_Carrot](#): > > You’re setting a very high standard for recusal here. It is important that the judicial system be seen as having no hint of impropriety, and one side of the case having contributed heavily to one of the judges’ election bid looks pretty damn fishy to me. How far does it go, though? If you are going to have judicial elections, then surely you are going to have political groups taking sides and contributing money. It would seem that sooner or later, judges would have to step down on most every controversial issue. Let’s take a gay marriage case: You would have some judges supported by the pro-SSM groups who would have to recuse themselves. Then you would have the judges supported by the Jerry Falwell marriage coalition: recusal for them. But I think that Nametag has it right. You don’t go out and buy a judge hoping to get him to do a 180 on an issue. You do what is done in every other political office: You support the people who already think like you. What should the donor have done in this situation? Be unable to use his wealth to elect someone to the court who would preserve his interests? ---
**Author:** ![Captain\_Carrot](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@Captain\_Carrot](https://boards.straightdope.com/u/Captain_Carrot)\ **Post date:** [June 20, 2009, 11:50pm UTC](https://boards.straightdope.com/t/supremes-rules-that-judge-should-have-recused-himself/499235/30 "2009-06-20T23:50:20Z")
> [@jtgain](#): > > How far does it go, though? If you are going to have judicial elections, then surely you are going to have political groups taking sides and contributing money. Not necessarily. I believe that in Minnesota, for example, one of the judges currently on there was endorsed by the Republican Party, but he sharply rejected that endorsement, saying it was neither necessary nor helpful for the judiciary to be politicized in that way. (not verbatim, but something like that) > [@jtgain](#): > > But I think that Nametag has it right. You don’t go out and buy a judge hoping to get him to do a 180 on an issue. You do what is done in every other political office: You support the people who already think like you. What should the donor have done in this situation? Be unable to use his wealth to elect someone to the court who would preserve his interests? No, he’s free to use his money how he wishes, and accept the consequences thereof. The judge should have recused himself to avoid the appearance of impropriety, and the rich mountaintop-remover would have learned his lesson. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 21, 2009, 12:04am UTC](https://boards.straightdope.com/t/supremes-rules-that-judge-should-have-recused-himself/499235/31 "2009-06-21T00:04:06Z")
> [@jtgain](#): > > So, I will venture that nobody can come up with one single power that is exclusively reserved to the states? Of course – the complete police power (which includes things like zoning and licensing in addition to the more obvious aspects), the power to regulate and even prohibit importation of alcoholic beverages (Amendment XXI, Sec 2 – which is a cutout from insterstate commerce)… etc. But to exercise the powers, they must comply wsith due process as jurisprudence has defined it over the years. A fair and impartial trial, for example, is an obligation for any charge against a state law. ---
**Author:** ![ashman165](https://avatars.discourse-cdn.com/v4/letter/a/8e8cbc/32.png) [@ashman165](https://boards.straightdope.com/u/ashman165)\ **Post date:** [June 21, 2009, 4:07pm UTC](https://boards.straightdope.com/t/supremes-rules-that-judge-should-have-recused-himself/499235/32 "2009-06-21T16:07:25Z")
> [@Polycarp](#): > > Of course – the complete police power (which includes things like zoning and licensing in addition to the more obvious aspects), the power to regulate and even prohibit importation of alcoholic beverages (Amendment XXI, Sec 2 – which is a cutout from insterstate commerce)… etc. > > But to exercise the powers, they must comply wsith due process as jurisprudence has defined it over the years. A fair and impartial trial, for example, is an obligation for any charge against a state law. This. I think this is a nice, elegant rebuttal. There are powers which are exclusive to certain jurisdictions, like to try people who violate their laws. However, they can’t go around breaking other laws, or ignoring them, in the quest to do so. So, they have exclusive power to deal with local issue by local laws, provided they follow the constitutions of their own state and the federal government. The federal constitution prohibits anyone from depriving anyone of certain things without due process of law. Renting a judge to rule in your favor defeats that end, and as such is a federal question. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 21, 2009, 5:13pm UTC](https://boards.straightdope.com/t/supremes-rules-that-judge-should-have-recused-himself/499235/33 "2009-06-21T17:13:09Z")
> [@Polycarp](#): > > Of course – the complete police power (which includes things like zoning and licensing in addition to the more obvious aspects), the power to regulate and even prohibit importation of alcoholic beverages (Amendment XXI, Sec 2 – which is a cutout from insterstate commerce)… etc. > > But to exercise the powers, they must comply wsith due process as jurisprudence has defined it over the years. A fair and impartial trial, for example, is an obligation for any charge against a state law. So, in other words, nothing. A zoning or licensing law/ordinance could be said to treat one person differently from another and then become a federal issue. But EVERY law treats one person differently than another, so every law become a federal matter. Or the feds could decide that a Miami zoning ordinance “substantially affects” interstate commerce in a way that the feds don’t like. Regulate alcoholic beverage sales? They can’t even set a purchase age less than 21 without the long hand of the federal government taking away other monies; even though that is one where the states are given specific powers. Set greater than a .08BAC for a DUI conviction and also lose money. Licensing? Sure, as long as it isn’t a medical marijuana license. Surely you would agree that the idea that the powers of the national government are “few and defined” is silly; and in direct contrast to what our founders envisioned. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 21, 2009, 5:47pm UTC](https://boards.straightdope.com/t/supremes-rules-that-judge-should-have-recused-himself/499235/34 "2009-06-21T17:47:54Z")
> [@jtgain](#): > > So, in other words, nothing. A zoning or licensing law/ordinance could be said to treat one person differently from another and then become a federal issue. But EVERY law treats one person differently than another, so every law become a federal matter. Or the feds could decide that a Miami zoning ordinance “substantially affects” interstate commerce in a way that the feds don’t like. > > Regulate alcoholic beverage sales? They can’t even set a purchase age less than 21 without the long hand of the federal government taking away other monies; even though that is one where the states are given specific powers. Set greater than a .08BAC for a DUI conviction and also lose money. > > Licensing? Sure, as long as it isn’t a medical marijuana license. > > Surely you would agree that the idea that the powers of the national government are “few and defined” is silly; and in direct contrast to what our founders envisioned. Discriminiation in and of itself is not illegal – you are certainly entitled to fill the job of Assistant General Counsel with a straight white male lawyer with 10 years experience in preference to a Lesbian black woman paralegal. What is illegal is discrimination on the basis of ‘suspect categories’ without the appropriate degree of reasonable basis. (Some attorney can explain this one better than I.) I tend to agree with you that the ‘interstate commerce’ clause has become so elastic as to have no effective justification. But try to come up with a sane jurisprudence, remembering presumption of constitutionality – the courts start with the premise that Congress had valid reason under the Constitution to enact what it did, and require that that premise be refuted by the challenger,. rather than the other way around. Finally, the ‘Federal aid’ thing is not compulsory – it’s the carrot rather than the stick, where Congress wishes to set a national standard for things within the reserved powers. Any state is completely free to refuse the Federal money and do as they choose – there were some cases in the recent past where a state did precisely that, notably over highway issues. I am not enamored of what Federalism has become, either – but I’ve seen the alternative, and it’s not pretty. ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [June 21, 2009, 8:40pm UTC](https://boards.straightdope.com/t/supremes-rules-that-judge-should-have-recused-himself/499235/35 "2009-06-21T20:40:46Z")
> [@jtgain](#): > > Surely you would agree that the idea that the powers of the national government are “few and defined” is silly; and in direct contrast to what our founders envisioned. That’s ridiculous. The “due process” and “equal protection” clauses don’t affect the distribution of _powers_ between the state and federal governments; rather, they place a restriction on the _manner_ in which states can exercise the powers that they held and still hold. If you think the due process clause is unduly restrictive, please consider that it also applies to the federal government (see the Fifth Amendment). [Previous page](https://boards.straightdope.com/t/supremes-rules-that-judge-should-have-recused-himself/499235.md?page=1)