From: TAMU Times
Posted: September 30, 2014
By: Daniella Wiedel, Texas A&M University School of Law Communications Specialist

FORT WORTH, Texas - Ask most people what they want most in a judge, and they are likely to tell you that they expect someone who will be fair, unbiased and impartial. But recent developments have left many people questioning whether judicial impartiality is the reality or a pipe dream. 
In her article “High Court Pretense, Lower Court Candor: Judicial Impartiality After Caperton v. Massey Coal Co.,” Texas A&M University School of Law Professor Lynne Rambo discusses the judicial ideal, and in particular, the effects of a 2009 case in which the Supreme Court raised expectations for judges across the country.
“In the federal system, as dictated by the Constitution, judges are appointed, and so we count on them to rise above and demonstrate a high level of impartiality,” Rambo said.
But, in 39 of the states, judges will face elections either to obtain or keep their seats, and those elections have politicized judging, bringing with them million dollar benefactors and demands that judicial candidates take stands on important issues before they will be given electoral support. 
By 2009, the politicization had gotten so bad that Caperton v. Massey Coal Co. ended up before the Supreme Court. In Caperton, a coal company facing a $50 million verdict against it, contributed $3 million to a candidate for the West Virginia high court, dwarfing all other contributions, and thereby elected a judge who cast the deciding vote overturning the coal company’s verdict. 
In a controversial 5-4 decision, the United States Supreme Court held that it violated due process for the judge elected with the coal company’s money to sit on a case involving the company. The Court held that due process is violated whenever the “average judge” likely cannot be neutral, or, put another way, when the circumstances present an unconstitutionally high “probability of bias,” whether or not there is any proof that the judge in the case was actually, personally biased.
Photo by Tim Evanson under license
In examining cases all over the country citing Caperton, Rambo found that the Supreme Court’s decision has had a decidedly positive effect on judicial impartiality. Several state systems have changed, or are considering changing, their procedures with respecting to deciding recusal motions, so that judges no longer have exclusive power over motions brought to recuse them. When recusal motions have been brought, the lower federal courts and state judges have taken a much more candid approach to the possibility of their own bias and have begun erring on the side of stepping out if there is any question at all. This should eventually improve the public’s perception of the bench. 
The one exception Rambo found is the United States Supreme Court itself. The Court continues to allow individual justices to decide their own recusal motions and to take a very reticent view of recusal. Just as importantly, the justices engage freely in political activity that would constitute ethical violations were it engaged in by the lower federal judges or the states judges. This sets a very poor public example of impartiality, Rambo said, and if we are to return to the judicial ideal, the justices should voluntarily restrict those activities.  
View Rambo’s faculty profile or SSRN author page for more on her most recent work.
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