Letter and NYT op-ed urge SCOTUS to implement recusal procedures

The NYT editorial (with a link to a letter signed by my profs, including lots of PR profs) calls for implementation of a new recusal review process at SCOTUS. (h/t: Otherwise)  It's not clear to me that the court is suffering from a loss of public confidence due to this issue and it seems that creating more processes in which parties and media can assert bias could itself lead to less confidence in the court, particularly if the media and advocacy groups continue to view judicial ethics as just another theater for ordinary partisan politics.

Comments

[Stephen Gillers]

John,

How would a further level of review within the Supreme Court itself lead to the situation you worry about? After all, only the lawyers before the Court can seek recusal and they are not likely to do so lightly. They never have. You seem to imply that a further level of review of denials of recusal, by the Court itself or an individual Justice, which is the mild solution in the editorial, will produce meritless motions by lawyers, and therefore we have to stay with a system where each Justice is the final arbiter of his or her ability to sit under the statute.

[john Steele]

Steve, I want to respond with some care and that make take a day or two.

[Monroe Freedman]

This proposal is worse than useless. Worse, because of the likelihood that it would result in watering down the recusal standards for all federal judges.

Members of the Court, including the Chief, have already defended clear violations of sec. 455. This is understandable. The justices have to work closely together in a collegial atmosphere despite fundamental disagreements about jurisprudence and constitutional law. The bitter Jackson-Black feud is a good illustration of what can happen when one justice criticizes another’s ethics.

In addition, members of the Court have expressed their dissatisfaction with the application to them of sec. 455.

What would undoubtedly happen under the proposal is that the Chief and the other justices will validate every individual decision of a colleague, no matter how egregious, thereby establishing bad precedents for all federal judges.

My guess, though, is that one or more members of the Court have already expressed approval of the proposal, or it would not have been put forward. See 30 Okla. City Univ. L. Rev. 513, 529-532 (2005).

[Stephen Gillers]

Thanks, John. I'll watch for it.

[John Steele]

I have posted quite a few times on this topic about recusal in the United States Supreme Court. My first objection is to the partisan nature of the recent push on this issue. As you probably know, I have automatic searches set up to find news articles, cases, and blog posts about legal ethics. It seemed to me that this issue first arose in the context of very partisan advocacy groups who were targeting conservative justices in the context of the vote on the healthcare reforms. That bothered me. Almost simultaneously, some op-eds, editorials and pundits, from what I’d deem the center-left to farther left of American politics, jumped in and began a push on this issue, almost invariably attacking Justices Thomas, Alito, and Scalia and referencing that anticipated healthcare decision by the high court. I certainly don’t begrudge the New York Times its right to push for center-left, partisan policy reforms that benefit certain segments of our country. But I expect a lot more from legal ethicists. If the fields of judicial ethics or legal ethics become a playground for ordinary partisan politics, we will have lost something important.

The low point in all of that politicking was the call by Rep. Anthony Weiner to have Justice Thomas investigated for bribery and perjury. I want to be very careful here: I am not suggesting that Rep. Weiner's attack is illustrative of all the recent calls for reform. Rep. Weiner is no longer in Congress, as is well known, because he was prone to shoot from the hip. :-) If the legal ethics profs and lawyers circulated a letter to condemn those kinds of attacks, I missed it.

It is my expectation that if advocacy groups from the political right were to attack liberal judges and justices, we would see a hearty defense of judicial independence from many of the same quarters which have recently been criticizing conservative justices. And quite properly so. There is an older ethical norm, which admittedly is no longer in the ethics rules, suggesting that lawyers have a special duty to defend judges from political attack when the judges themselves are constrained from entering the political fray. I still find that norm compelling. So, even if there are legitimate grounds to explore the proper standards and procedures for recusal, in my view all the recent reform talk should have been prefaced with a stern admonition about the dangers of making this a partisan issue. The sad irony is that if there is such a push to protect the judicial independence from attacks from the political right, that push night be given less weight than it should be given because of the failure to speak out when the recent attacks came from the left.

There is another reason that lawyers and law professors ought to be on guard about infusing judicial ethics with partisan politics. As a practical matter, most of us believe that the justices have deep-seated jurisprudential and political commitments—in other words, most of us believe that the justices have “biases” that affect their decision-making. So in the broadest sense of the word, they’re all biased, at least when they’re addressing the hot-button issues that are not clearly covered by existing precedent. We could come up with examples to illustrate the bias of all nine justices, but to pick one justice (who has earned a reputation for integrity), assume that for some reason Justice Ginsburg was sitting as a trial judge in a California state court and was assigned to preside over a gender discrimination case. Many California lawyers would quickly use their prerogative to remove her from the case under Code of Civil Procedure section §170.6 even though she is not “biased” in the way that matters under recusal statutes. That’s because only certain kinds of biases count for recusal. Lawyers and law professors understand that better than most citizens are equipped to understand. The type of bias that matters for disqualification is a far narrower form of bias than we might credit when we’re simply talking politics. Yet it seems to me that that broader notion of bias is the one that is motivating the partisan advocates in their recent attacks on conservative justices and their recent calls for reform. For that reason, I wish that lawyers and law professors had been more vocal about the need to shield the judiciary from the cruder forms of politics.

A third reason to shield the judiciary from crude politics is so that our field of legal ethics can command the respect it should have. I have recently seen in print some slams against the field of legal ethics from federal judges and I have heard a couple comments off the record to the same effect. I’m worried that the partisan political nature of much of the recent recusal discussion, coupled with a failure by people in our field to speak out for judicial independence, can lead to that type of attitude. I’d hate to see that happen.

I realize that criticizing the original source of some of the recusal proposals for being too partisan is not logically sufficient to conclude that recusal reform is inappropriate. It could well be that reform of the recusal process is appropriate. But, I would be cautious in that regard. I will try to address the merits of the issue in my next set of comments. I’m traveling this week and next and I’m not getting these comment posted as quickly as I’d wish.