Legal Commentary

In, Caperton v. A.T. Massey Coal, (released Monday, June 8) the Supreme Court ruled 5-4 that a West Virginia judge violated the Due Process Clause by not recusing himself from a case in which one of the parties spent $3 million towards the judge?s election campaign. 

A Talmudic maxim instructs with respect to the Scripture: ?Turn it over, and turn it over, for all is therein.? The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed.1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed-which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious 

Someone who had hosted Rav once appeared before Rav as a litigant. The litigant said to Rav: Where you not a guest in my house? Rav answered: Yes. The litigant said: I have a case that requires adjudication Rav answered: I am disqualified from serving as your judge (since I benefited from your hospitality) Rav then turned to Rav Kahana and said ?Go and adjudicate this claim? Rav Kahana saw that the litigant was acting confidently Such that Rav Kahana said to the litigant ?If you will obey my judgment, then obey it,? But if not I will prevent Rav from aiding you Or to take another example from the Ketubot 105 (which records many such stories), where the Talmud relates that bribes can come in the form of cash as well ?in words.? In inquiring what constitutes a ?bribe in words?, the Talmud reports Like the case of when [the Talmudic sage] Samuel was crossing a bridge A certain man approached him and gave Samuel his hand for support while crossing Samuel asked him: ?What is your business?? He replied: ?I have a suit in your court.? Samuel said: ?I am disqualified from serving as the judge in your case?