Because the Alito hearings were political theater about a pressing issue, the testimony of Professor Amanda Frost (American University, Law) about reforms of the judicial recusal process didn't seem to grab the committee's attention -- which is a shame. Once the Alito nomination wraps up, some attention ought to be paid to the procedure of recusals.
Here's Professor Frost's article on the topic, and this is the abstract:
The laws governing judicial recusal are failing to protect the reputation of the judiciary, as was illustrated by the recent controversy surrounding Justice Scalia's refusal to recuse himself from Cheney v. United States District Court for the District of Columbia. The history of recusal law reveals that each time Congress amends the recusal statutes to expand their scope, judges interpret the legal standards narrowly to avoid disqualification. This article contends that the recusal statutes are ineffective not because the substantive standards for recusal are too limited, but rather because the recusal process operates outside of the traditional adjudicatory model. For example, the very judge whose impartiality is being questioned is expected to raise and decide the question whether his or her own conduct creates the appearance of impartiality, and often makes that decision without issuing any explanation for it. Drawing on the literature locating the judiciary's legitimacy in traditional forms of adjudication, this article suggests that recusal law will only serve its purpose of protecting the judiciary's reputation if it incorporates these core procedural tenets of adjudication into the recusal decision. Specifically, the article proposes procedural reforms such as encouraging an adversarial presentation of the recusal question to an impartial judge who must issue a reasoned decision that will provide guidance for judges in future cases.
In a related vein, Mike Dimino, over at Concurring Opinions, has this discussion of the possibility of allowing circuit judges to sit by designation on the US Supreme Court when recusals occur. Dimino is "cautiously negative" about the idea.
I am cautiously negative about Professor Frost's proposals and the sitting by designation idea. My concern is that "if you build it, they will come." That is, we're likely to suffer an increased flow of recusal motions, demands for recusal, more permissive standards for recusal, and claims that reasonable people could doubt the impartiality of this judge or that judge. That's because the litigator's calculus for bringing motions often is, "if it's not frivolous and it could help my client, I should file it." As I often say, sometimes "ethics" is just a brick they throw at you. And I don't want to encourage throwing bricks at judges for the simple purpose of winning. An increase in recusal motions will be, in essence, an increased politicization of the judiciary.
Here's one of the difficult truths we have to live with: some reasonable person can doubt the impartiality of most judges. Reasonable people know that federal judges are chosen through an overtly partisan process and that state judges are often winners of contested popular elections. Some reasonable people believe that all judges have recurring trends, traits and tendencies about how they rule. Some reasonable people believe that race, class, and gender matter deeply in how we relate to each other. For example, if a white, male, former prosecutor of drug crimes is appointed to the bench by a Republican administration and rules against criminal defendants more often than the average judge in that particular federal district, some reasonable person would say that impartial justice isn't likely from that judge in a criminal drug case against a non-white. At the same time, the reasonable person is nonetheless expected to acknowledge the impartiality of most judges most of the time. Returning to my hypothetical former-prosecutor-turned-judge, there's nothing in that fact pattern that would -- or should -- require recusal under the current state of the law. It's not enough to say, and it shouldn't be enough to say, "Here's a reasonable person who really doubts that judge's impartiality."
We saw this duality surface in the Alito hearings, where Alito earned the highest of praise for his personal and professional ethics -- and was also accused of severe bias based upon examination of large numbers of his rulings.
Much of the recent focus on recusals has been driven by two events: Justice Scalia's ill-considered public comments about the Pledge of Allegiance case, which prompted him to recuse himself, and Scalia's duck-hunting trip with Dick Cheney, which did not result in recusal. I wish that Scalia had shown more restraint in his public remarks and hadn't taken that trip. Those events were followed by John Robert's non-recusal in the Hamdan case, at a time when he had been interviewed for a possible nomination to the US Supreme Court, and by Alito's belated recusal in the Vanguard matter. In the public discussion of those events, partisan politics intermingled with legitimate ethical concerns, blurring the line between the two. One recusal controversy seemed to lead to others, and there is a sense that a trend is in the air. Reforms seem inevitable. My concern is that increased process is not necessarily better process. Sometimes, improving things only makes things worse.
Do we really need to reform the recusal process? We're hearing claims that the legitimacy of the judiciary will erode if we don't reform the process. If that's true, how do we reform the recusal process in a way that preserves the hard truth that we cannot demand recusals every time some reasonable person questions the judge's impartiality and that avoids the danger that judicial legitimacy will be eroded by too many recusal demands? Those questions will be heavily debated over the next few years.
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