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The issue of judicial competence and integrity is particularly troubling in the wake of Caperton v. A.T. Massey Coal Co., where the U.S. Supreme Court vacated a state supreme court decision in which a justice—who had received at least $3 million in campaign support from a litigant—cast the deciding vote to relieve the litigant of a liability award of $50 million ($82 million with interest). The Court reached this result, one I view as compelled by common sense, through a 5-4 vote. The dissenters, led by Chief Justice Roberts and Justice Scalia, minimized the danger of biased judging presented by the situation and questioned the practical feasibility of the Court's approach, as well as the wisdom of expanding review of state court judicial disqualification pursuant to the Due Process Clause. If nothing else, the state justice's clearly erroneous failure to recuse (the constitutional question may have been fairly debatable but the basic disqualification question was not) wasted vast amounts of money and time by expanding the litigation and necessitating multiple motions, a trip to the Supreme Court, and yet another oral argument on the merits of the case.

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87 Denv. U. L. Rev. 335 (2010)