I have just read the testimony of Justices Breyer and Scalia before the Judiciary Committee on October 5, 2011. These are two of the worst offenders in ignoring statutory and constitutional recusal requirements.
Without referring specifically to Justice Thomas, Breyer testified that each Justice is bound by financial reporting requirements of “every penny that I take in or my wife or my – or minor children, every asset has to be listed in depth, and it’s all filed.” He added that “the amount of money that [a judge] can take from anyone outside is far more limited, I believe, under the codes of ethics than people who are not judges. Judges have special restrictions there.”
Breyer also testified that under “general ethics requirements” “you can’t sit in cases. Those are statutory, and I think they bind us, period. I’ve always thought so.” In particular, when he was on the First Circuit, “if I had a close question, I’d take myself out of the case.” – That testimony is false. See 30 Okla. City Univ. L. Rev. 513, 521-527.
In addition, Breyer said that if he had “a problem” regarding recusal, he would “call an ethics professor.” That is true. When he has been clearly subject to recusal, but wanted to sit on a case because of a strong personal interest, he has called a friendly ethics professor, who has given him an incompetent and dishonest opinion letter saying that he was free to sit on the case. See, e.g., id. at 530-532.
Ironically, Breyer also testified that “there’s a lot of skepticism and cynicism about government in the United States.” This echoes language in Liljeberg, where the Court observed that because of “suspicions and doubts about the integrity of judges,” sec. 455(a) was adopted to avoid “the appearance of impropriety whenever possible.”