Sunday, November 28, 2010
Just a little chiasmus that came to me upon reading this editorial in the N.Y. Times. I largely agree with the points about gift giving to judges. The first judge I worked for criticized these boondoggles as unwise. That always struck me as sensible for judges on any court.
But note how the op-ed seamlessly elides the issue of recusal based on gift giving with all recusal issues. It makes this move almost exactly as it trains its sights on the U.S. Supreme Court, observing that "[t]here is a growing consensus -- outside the court -- that the justices should change how they handle recusals: requiring a justice to explain any decision to recuse or not, and having a group of justices review each recusal decision."
Setting aside the issue whether such a "consensus" exists (I think Professor Steven Lubet has made this argument recently; I'm unaware that it has generated anything approaching "consensus," even a "growing" one), this seems to me an idea fraught with danger. There are all kinds of reasons that claimants move to recuse judges from hearing cases. Some are financial. Some are personal. Some are political. Some are ideological (and, sometimes, when ideological, they may be supported by religious convictions, Catholic and otherwise). Should (to pick just one example at random) the Defense of Marriage Act ever make it to the Court on constitutional grounds, it would very much surprise me not to see a motion for Justice Scalia to recuse himself from the case -- based on his public comments, the claimant would likely argue that Justice Scalia's impartiality could reasonably be questioned.
Suppose that Justice Scalia decides that he will not recuse himself from the case. Or suppose that he decides that he will. Per the editorial's suggestion, he provides a list of reasons. And now the question of his recusal is reviewed by his colleagues. Perhaps a 3-justice panel (whom shall we choose)? Or perhaps the full complement of 8 justices? If the latter, what happens if we get a 4-4 tie? Does a tie go to Justice Scalia? More problematic -- what happens if the 4-4 tie mirrors exactly the way in which the justices vote on the substantive issue of DOMA's constitutionality? It would seem that by opting for this procedure, the justices might be tempted to judge the merits sub silentio and a little prematurely; at the very least, the appearance of impartiality as to the entire Court might suffer more than a little.
Another thought: would we permit motions to recuse certain justices from judging the propriety of a decision not to recuse -- recusing judges from judging recusals? Could DOMA supporters move to recuse a justice who had said negative things about DOMA in the press from considering Justice Scalia's refusal to recuse himself? If we did permit those types of motions, could we also have further proceedings where a panel of judges considered a justice's decision not to recuse herself from considering the appeal of a justice who didn't recuse himself from the merits? I'd guess most people might reject that sort of review as excessive. But having proceeded down this path, what now makes this collateral review out of bounds -- one step too far?
I understand that it would be wonderful if justices recused themselves based on our own individual sense of when their impartiality could reasonably be questioned. And I also recognize that recusal standards are frustratingly vague, and that the current process gives off the whiff of unaccountability. But thoroughly politicizing the recusal process by demanding that other justices pronounce judgment on their colleagues' recusal decisions seems to me a bad idea. It is a reform that, though surely offered with good intentions, is fraught with the possibility of gamesmanship and politicized tit-for-tat strategizing. If adopted, I think it is likely to damage the judiciary, and to exacerbate problems that it already confronts.