Below is a bit more of SCOW Justice Janet Protasiewicz's excellent order declining to recuse herself from participating in redistricting cases. She delivers a real bench slap to recusal supporters.
Direct quotes from Protasiewicz's order are in italics.
The Legislature cited a SCOTUS case, Caperton v. Massey, in trying to force SCOW Justice Janet Protasiewicz to recuse herself from redistricting litigation. In Caperton, SCOTUS ruled that a judge cannot hear a case involving mainly the financial interests of someone who supported him substantially in his campaign for election.
In that case, while a case was pending against his company, Massey Coal Co. CEO Don Blankenship spent $3 million in support of West Virginia Supreme Court candidate Brent Benjamin, who won the race by 50,000 votes.
Benjamin then turned around and cast the deciding vote to overturn a $50 million verdict against Massey. The case was pending when Blankenship donated to his company's eventual Virginia judicial helpmate.
The $3 million vastly exceeded the amount spent by all other supporters of the judge; it was more than three times the amount spent by the judge's own campaign committee; and it surpassed by $1 million the total amount spent by the campaign committees for both of the candidates combined.
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This (Protasiewic's case) is obviously a "lesser factual situation." In Caperton, the CEO spent 300 percent more than the judge's campaign committee; here, the DPW's contribution was only 57 percent of the spending by my campaign committee, and was merely 33 percent of the total spending in support of my campaign. In Caperton, the CEO's donations fully eclipsed all other spending in the election; here, the DPW's contribution was just 19 percent of all spending on the race. In Caperton, the CEO's expenditures were concerning partly because his favored judge won by only 50,000 votes; here, I defeated Justice Daniel Kelly by a decisive 11 percent of the vote (the very same margin by which Justice Kelly lost to Justice Jill Karofsky only three years earlier). And in Caperton, the CEO spent $3 million while his own case was already pending before the West Virginia courts; here, these original action petitions were filed months after the election had already concluded.
Under Caperton, these distinctions make all the difference. The DPW's contribution was too small a percentage of my campaign committee's fund, and too small a percentage of the overall spending on the race, to warrant my disqualification — especially given that the election was not close and this original action petition was not even pending at the time.
Protasiewicz also took issue with the Legislature's contention that she should recuse because she said during her campaign that the state's current political maps "gerrymandered," "rigged," and "unfair" and that she she disagreed with the SCOW decision adopting the maps.
There are two fundamental issues with the Legislature's position. The first is factual. While making many of the statements that the Legislature spotlights, I also emphasized that these were descriptions of my personal "values," not pledges of "what I'm going to do on a particular case." Elsewhere, I explained: "I plan to follow the law. I tell you what my values are because I think that Supreme Court candidates should share with the community and the electorate what their values are. Nonetheless, I will uphold the law [and] follow the Constitution when I make any decisions. Nothing is prejudged." I also made clear: "[W]hat my real values are and what's going to happen in a case can be two different things, right? I mean, follow the law, you look at the case law, you look at the statutes, you look at the constitution, and you follow where . . . it leads you." And again: "I follow laws I don't always necessarily like or agree with. You follow the law."
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The second issue with the Legislature's position is that it is foreclosed by federal precedent. As two legal experts recently explained, "[n]o Supreme Court case has ever held that due process required a judge to recuse because of the judge's expression of views, whether on the campaign trail or elsewhere. In fact, the Court has rejected several such claims." Thus, "[no] decision of the [United States Supreme] Court would require us to hold that it would be a violation of procedural due process for a judge to sit in a case after he had expressed an opinion as to whether certain types of conduct were prohibited by law."
More recently, the United States Supreme Court struck down a Minnesota rule that banned judicial candidates from announcing their views on disputed legal or political issues.
Protasiewicz quoted Justice Rebecca Grassl Bradley's hero, Antonin Scalia:
"[A] judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason."
"For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law." Nor should anybody want to elect such a judge: "Proof that a Justice's mind at the time he joined the Court was a [blank slate] in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias."
Consider the point practically. Many other justices have written opinions expressing strong views on the legality of the current legislative maps. Only a month ago, one justice wrote an opinion in this very proceeding that describes the mere consideration of this original action petition as a "mockery of our justice system." No other justice has decided that they must recuse, even though their prior writings (including from just last year) might indicate firm preconceptions of certain issues in this action. And if prejudgment is the concern, their writings are just as relevant as my campaign remarks.
The "one justice" is Grassl Bradley, she of the grievance wing of the country's judiciary. In her dissent to a scheduling order, she went far beyond anything Protasiewicz ever said.
Grassl Bradley called the pending case "rigged." She basically announced her vote before the case was even heard by declaring that Protasiewicz and Justices Ann Walsh Bradley, Rebecca Dallet, and Jill Karofsky would "adopt new maps to shift power away from Republicans and bestow an electoral advantage for Democrat candidates."
Meaning, obviously, that Grassl Bradley certainly won't vote that way.
Curiously, no Republican has yet called for Grassl Bradley's recusal. Huh. Imagine that.
Still more to come.
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