Here I'd like to comment on the triumphalist posts of Bill Christofferson and Paul Soglin, claiming that Justices Annette Ziegler and Justice Michael Gableman must recuse themselves from ... well, its not clear. Soglin doesn't say and Christofferson claims that it should be all cases "involving" Wisconsin Manufacturers Commerce. Of course, WMC is rarely a party before the Court so what he really means is cases in which - who knows - WMC has filed an amicus brief or has members who might benefit or in which "business interests" are at stake.
Of course, Bill
But let me grant them a point. They could turn out to be right although I think it unlikely. The reason they could be right is that the majority opinion in Caperton is not a model of clarity and provides uncertain guidance for the next case. Justice Kennedy speaks of a need to recuse when, viewed objectively, there is a potential for bias. That's a rather broad and vague standard that could be applied in lots of cases.
But then he writes of a particular person with a personal stake in a particular case that is pending or imminent at the time and who has had a disproportionate influence on the process. Is that it?
WMC rarely has a personal stake in a case and, putting that aside, there were very few cases pending or imminent at the time of the election in which it could be said to have a more general interest.
If the latter is the measure of the due process right to recusal, then my happy liberal friends are wrong and will be sorely disappointed. My own view is that this is the most likely - and correct - outcome. In other cases, the Court has emphasized the speech rights of judicial candidates and the rights of organizations to comment on matters of public interest and, subject to reasonable regulations, candidates. It would, I think, be inconsistent with that jurisprudence to make recusal the price of speech.
I intend to explore that idea in a law review article, but, of course, it might not turn out that way.
If it does not, I fully expect to see Bill Christofferson and Paul Soglin call for the recusal of Chief Justice Abrahamson and others who have been supported by the Greater Wisconsin Committee in cases of interest to the trial lawyers, unions and casinos.
No, I don't.