Litigation

NY Times: High Court Recusal Policy Needed

By Peter Hardin

Saying questions about the Supreme Court’s impartiality “are too serious to ignore,” a New York Times editorial urges establishment of a recusal policy for the court — and prefers the justices come up with their own plan.

The editorial is entitled, “The Court’s Recusal Problem.” It explains:

“Supreme Court justices have life tenure to assure their independence and impartiality. The court?s lack of a recusal policy leaves each justice to decide whether he or she is meeting that standard. That plainly violates the age-old legal principle: Nemo iudex in causa sua ? no one should be a judge about his or her own case. It damages the justices? credibility and the court?s authority.

“The court is still not addressing the issue despite months of questions about possible cozy friendships, suspected political biases and family ties.”

As mentioned recently in Gavel Grab, more than 100 law professors signed a letter calling for “implementation of mandatory and enforceable rules to protect the integrity of the Supreme Court.” The letter called for clear rules governing when a justice should step aside from hearing a case.

The letter sought action by Congress. In another recent development, two Congressional Democrats  announced legislation that would apply to Supreme Court justices the same  ethics rules that currently govern other federal judges (see Gavel Grab).

The editorial notes those developments and calls the professors’ proposal “a good start.” It then offers an alternate approach:

“It would be better for the justices to come up with their own similar proposal and adopt it ? including a review process by a committee of justices to ensure accountability. That would not interfere with the court?s independence and would strengthen its credibility.”

Meanwhile Justice Sonia Sotomayor was asked at an event whether a change on the court regarding recusal was possible. “I don’t know,” she answered, according to a Legal Intelligencer article, showing  “a rueful smile.” She added, “I used to teach my potential witnesses just to answer the questions asked.”

Justice Sotomayor was receiving an award from the Philadelphia Bar Association honoring her achievements in diversifying the legal profession.

You can read about the questions raised regarding the court’s impartiality by clicking here for Gavel Grab.

A  Supreme Court ruling in 2009 drew national attention to the issue of recusal. In that ruling, Caperton v. Massey, the Supreme Court declared that campaign spending can damage a litigant?s right to a fair trial, and it required a West Virginia Supreme Court justice to disqualify himself from an appeal.

Full post as published by The Gavel on March 16, 2011 (boomark / email).