Some groups challenging the legislature’s redistricting plan want N.C. Supreme Court Justice Paul Newby to recuse himself when the case reaches the court. Because Newby benefited from independent expenditures by conservative-leaning super PACs, these groups contend that Newby’s participation in the case threatens the court’s integrity.
Judicial bias is different from a judge’s having a judicial philosophy that a litigant does not like. While the former may be grounds for recusal, the latter is not. Thus, distinguishing the two becomes critically important.
Although N.C. judicial elections are nonpartisan, the resulting court is not. Many North Carolinians vote for – or provide financial support to – a particular candidate because that person has political, social, economic or jurisprudential views with which they agree. This is the nature of elections, judicial or otherwise.
None of this by itself threatens judicial independence or necessitates recusal. The same thing occurs with judicial appointments. The president nominates people to the federal bench because he believes they will vote in certain ways. Similarly, Gov. Bev Perdue will appoint a Democrat to fill Justice Patricia Timmons-Goodson’s seat before Gov.-elect Pat McCrory takes office.
Neither the U.S. Constitution nor U.S. Supreme Court precedent requires Newby to recuse himself. The Court has found that the due process clause of the Fourteenth Amendment mandates recusal only in two circumstances: when a judge has a personal financial interest in a case and when she hears certain criminal contempt proceedings. The redistricting litigation involves neither situation.
In 2009, the Supreme Court held that recusal is also necessary under due process if a “disproportionate” campaign expenditure “creates a probability of bias.” In Caperton, a coal company CEO spent $3 million to defeat an incumbent on the West Virginia Supreme Court while a $50 million verdict against his company was on appeal to that court. The newly elected justice subsequently voted to overturn the verdict.
The Supreme Court majority repeatedly stated that its “probability of bias” standard applies only to “extreme cases” such as Caperton. The person making the expenditures must have a personal stake in a pending case, and that spending must have a disproportionate influence in getting the judge elected to hear that case.
None of the super PACs has any personal stake in the N.C. redistricting litigation. Although gerrymandering raises a host of important constitutional issues, there is no monetary award for or against a super PAC or its donors. Moreover, it is not clear that any one super PAC – let alone any individual donor – had a disproportionate effect on the election. As a result, this is not one of the rare instances where due process requires recusal.
In fact, if Newby is required to recuse himself, then Timmons-Goodson’s replacement also should be ready to recuse herself. After all, the new justice will have been appointed by a Democratic governor, who reasonably wants the appointee to rule in the Democrat’s favor on a host of issues, including redistricting.
Such a broad recusal rule would lead to a marked increase in bias claims, which, as Chief Justice John Roberts noted in his Caperton dissent, “will do far more to erode public confidence in the judicial impartiality than an isolated failure to recuse in a particular case.”
Public trust in the judiciary is preserved through elections and by limiting recusal to “extreme cases.” Newby’s case is not that.
Scott Gaylord is a professor at the Elon University School of Law.
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