Judicial Disqualification after Caperton v. A.T. Massey Coal Company: What's Due Process Got to Do With it?

24 Pages Posted: 24 Jul 2011

See all articles by Ray McKoski

Ray McKoski

University of Illinois Chicago School of Law

Date Written: July 23, 2011


This Essay asks and answers the question: What is the difference between the due process test for judicial disqualification established in Caperton v. A.T. Massey Coal Co., and the “more rigorous” ABA disqualification test incorporated into state and federal disqualification rules?

According to Caperton, the Due Process Clause mandates judicial disqualification when the circumstances offer a temptation to the average judge to abandon his or her impartiality. The ABA-based state and federal disqualification rules require that a judge avoid proceedings in which the judge’s impartiality might reasonably be questioned. The focus of both tests is whether a “serious risk” of actual bias exists. Under the ABA test, whether a serious risk of partiality exists is gauged through the eyes of the ordinary lay person. If the due process test is also administered by the ordinary lay person, then the due process and ABA standards are identical. But that cannot be the case for the simple reason that the Supreme Court says that the tests are different. Caperton describes the ABA test as more rigorous and teaches that the ABA standard may often require the removal of a judge when due process does not.

The difference between the two tests must lie in the identity of the hypothetical individual charged with assessing the likelihood that the circumstances present a serious risk of judicial bias. The average lay person is in the best position to protect the interest served by the ABA recusal standard - the public’s perception that impartial justice will be done. But when it comes to assessing the probability that a judge will actually forego his or her sworn obligation and succumb to extraneous temptations, it is the average judge who is best fitted for the job. The person on the street can assess appearances, but only a person skilled in the art of judging is in a position to evaluate what the Due Process Clause protects - the probability that actual partiality will infect the decision-making process.

After establishing that the hypothetical average judge rather than the hypothetical average lay person determines disqualification issues under the Due Process Clause, the Essay illustrates how and why the average judge will view a potentially disqualifying circumstance differently than the ordinary, reasonable non-judge.

Keywords: constitutional law, due process, disqualification, judicial ethics, judicial impartiality, legal ethics, recusal, Caperton v. A.T. Massey Coal Co

JEL Classification: K19, K41, K42

Suggested Citation

McKoski, Ray, Judicial Disqualification after Caperton v. A.T. Massey Coal Company: What's Due Process Got to Do With it? (July 23, 2011). Baylor Law Review, Vol. 63, No. 2, p. 368, 2011, Available at SSRN: https://ssrn.com/abstract=1893712

Ray McKoski (Contact Author)

University of Illinois Chicago School of Law ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

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