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Monday, June 08, 2009

Chaim Saiman (guest post) on Caperton

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. 

Justice Scalia dissented, and concluded his remarks with the following: 

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 

Given the context of the case, I recommend to Justice Scalia the following Talmudic passage (Sanhedrin 7b-8a), in which the Rabbis express their attitude towards substantive issue at hand: 

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” 

Now I suppose that one might argue that this is precisely Scalia’s point. He means to draw a contrast between the divinely-inspired Jewish law (which presumably provides solutions to all legal problems), and the merely-mortal Due Process Clause, which does not. This claim gets into several lines of argument too detailed for right now-(but lets recall that the Talmud also distinguishes between rules that are ceilings vs. floors). In any event, if Scalia is going to cite Talmudic law in a case concerning judicial impartiality, he should at the very least inform us that the result he favors lies in sharp contrast to Talmudic conceptions of judicial ethics.

Posted by Administrators on June 8, 2009 at 10:13 PM in Constitutional thoughts | Permalink


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I don't think you answer Scalia's point. He claimed wheat and you answered barley. Cf. Mishna Shebu'ot VI.
He's talking Due Process and you're talking conflict-of-interest!

Posted by: Elli | Jun 12, 2009 7:01:05 AM

Dear WB.
You are an astute reader of Talmudic texts, as this issue is debated by two of the greatest mediaeval commentators, Maimonides and Tosafot. While of course they do not speak in the language of federal due process, Tosafot maintains that these stories are to be understood as something we might translate as “best practices” –meaning that while the judge should disqualify himself but that failure to do so does not invalidate judgment—the pre Caperton rule. Maimonides by contrast understands that the judge’s failure to recuse himself invalidates the judgment—akin to the Caperton majority
The debate goes back and forth down through the ages, but my reading of the sources suggests that the following factors lead towards a finding that the judgment is invalid
• Where there judge has received a substantial benefit (contra the more de minimis benefits in the Talmudic stories)
• When other judges are available to judge the case
• When the litigant is almost certain to come before the judge
• When it is public knowledge that the litigant conferred a benefit on the judge.
Thus, on the facts of Caperton, it seems that the dominant opinions with in Jewish law would find the WVA court’s ruling invalid.
( For support of this view see, Bach to Hoshen Mishpat (HM) 9:6; Sm”a to HM 9:7; Shach to HM9:4; Pitchei Teshuva to HM 9:4 ; and Iggrot Moshe, HM vol 2 section 23:3 )

Posted by: Chaim Saiman | Jun 10, 2009 11:34:33 PM

Alas, Prof. Saiman, I do not think that your citations support your argument.

This passage describes two judges recusing themselves because -- in their own judgment -- their relationship with a litigant was disqualifying. That is effectively, the pre-Caperton rule that Scalia apparently believes (for practical reasons) cannot be improved upon: in general, judges must police themselves for apparent conflict of interest recusals. Scalia nowhere suggests that he agrees with West Viginia judge's decision not to recuse himself or that judges should not recuse themselves when they perceive a conflict; rather he objects to the constitutionalization of a rule that allows other judges to review, by applying an ill-defined standard, a lower court judge's decision not to recuse.

How does your citation to the Talmud provide support for the idea that judges must be answerable to other judges for recusals based on an apparent conflict? And if it does not, aren't you wrong to charge that "the result [Scalia] favors lies in sharp contrast to Talmudic conceptions of judicial ethics"?

(Although it should go without saying, I am not commenting on whether I believe Scalia's dissent was correct, but rather on what I see as an absence of evidence in support of your main point.)

Posted by: WB | Jun 10, 2009 11:05:48 AM

Slightly OT, but can you recommend a good translation of either version of the Talmud (Babylonian/Palestinian)?

Posted by: dmv | Jun 9, 2009 10:39:29 AM

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