April 5, 2004

Recusals redux: A Court in constant conflict?

By: James N. Markels

Last month in Brainwash I wrote about the furor over Justice Antonin Scalia’s refusal to recuse himself in a case concerning Vice President Richard Cheney when it was found that Justice Scalia had gone duck hunting with the Veep soon after the Supreme Court issued certiorari in the case. I pointed out how Justice Ruth Bader Ginsburg had similarly refused to sit out of cases where the American Civil Liberties Union–an advocacy group Justice Ginsburg worked for before becoming a judge–was a party. So you might have colored me surprised when just one week later the Los Angeles Times ran a story questioning Justice Ginsburg’s decision to not recuse herself in cases involving the National Organization for Women when the Justice has become closely involved with an annual lecture series that NOW sponsors. In fact, that lecture series is titled, “The Justice Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law,” where the Justice is a keynote speaker and pictures of the Justice are used to advertise the event–but not for fundraising.

Law professors had a mixed reaction to the news. Prof. Monroe Freedman at Hofstra University argued that the Justices should “draw the line at cause-oriented litigation organizations” like NOW. But Prof. Stephen Gillers at New York University rejected the idea that “judges should lead monastic lives . . . I think judges and justices should participate in broad legal debates, but within restraints.”

Justice Ginsburg rose to her own defense, making a number of insightful points. For one, when judges recuse themselves in other courts, another judge is assigned to replace them. However, on the Supreme Court, there are no backups. This raises the risk of a 4-4 vote split leaving an important question of law peculiarly unsettled.

“Some of my colleagues think a recusal in the Supreme Court is equivalent to a vote against the petitioner,” the Justice said, because a 4-4 split effectively makes the petitioner lose. Justice Scalia reiterated that argument in his 21-page decision two weeks ago to not recuse himself from the Cheney case: “The petitioner needs five votes to overturn the judgment below, and it makes no difference whether the needed fifth vote is missing because it has been cast for the other side, or because it has not been cast at all.”

While she stated that Justices should not “lightly recuse” themselves, Justice Ginsburg noted that the rule is especially strict on financial interests. “If I owned one share of General Motors, I couldn’t sit on that case,” she said as an example. On the other hand, familial affiliations weren’t quite as serious. Four of the Justices have a spouse or child who practices law, and those Justices have a formal agreement between them to not recuse themselves just because that relative’s firm is involved in a case before the Court. And Chief Justice William Rehnquist added a couple of comments to the fray on the Today show, where he indicated that he would not recuse himself in a case merely over social ties, such as if a member of his regular poker group was involved in a case argued before the Court.

Taken together, we’re starting to see the picture of how the Court deals with conflicts of interest. The emphasis seems to be on financial bias, rather than personal or jurisprudential bias. In other words, the Justices tend to accept that each of them have pretty well-formed ideas as to how they approach the law, and it’s perfectly natural for them to speak before groups that share these ideas and consort with their legal peers. Although this might be considered “bias” in a traditional sense, it would be foolish to think that anyone could achieve the highest Court in the land without some kind of developed jurisprudence, whether it be friendly to NOW and the ACLU in Justice Ginsburg’s case, or the Federalist Society in Justice Scalia’s. Perhaps a kind of constant conflict is inevitable on a Court where the stakes are the highest anyway.

But maybe this is also simply the natural result of the system. As Justices Ginsburg and Scalia have pointed out, when recusals cannot be replaced, the bar will be set higher to minimize the potentially negative side effects of having fewer Justices decided a case. If you don’t want the bar lowered, change the system. That would mean creating a body of replacement judges to fill in for recusals. This would not need to be a large group, since recusals should still not be common, but it should consist of federal judges due to the nature of the cases that come before the Court. The judges would have to come from all the different Circuit Courts of Appeal so that if the issue happens to be one where the Circuits have split, there could be a replacement that would not be a judge from one of the Circuits that has weighed in on the matter. And it would be best if this replacement group could be selected without partisan wrangling.

Put within those constraints, the choice seems obvious: Designate the Chief Judge of each Circuit as a potential fill-in for the Justices. Chief Judges are appointed by a non-political process under 28 U.S.C. 45, so their jurisprudence plays no factor in whether they get the position or not. The commission is based on purely rote factors like age and seniority on the Circuit. These judges all focus their experience on the issues the Supreme Court handles, and all of the Circuits are represented. It works, but I wouldn’t hold my breath expecting this to happen.

With the Court as fractured as it is, it’s understandable to be wary of recusal. But the appearance of propriety is the Court’s greatest currency, and it’s important to ask whether we’re better off risking that over a stubborn system that penalizes recusal instead of respecting it as part of what a Justice must do to preserve the integrity of the system.

James N. Markels is a law student at George Mason University.