Legal Commentary

One of the sillier exchanges in yesterday's hearing came when Senator Kyl argued that Judge Sotomayor, if confirmed, should have to recuse herself from hearing any of the three ongoing cases involving the question of incorporation of the Second Amendment--not only Maloney v. Cuomo, on which she sat on the panel in the Second Circuit, but also the unrelated cases decided in the Seventh Circuit (which agreed with the Second that controlling nineteenth-century precedent says the Second Amendment is not incorporated) and the Ninth Circuit (which held the precedent no longer controlling in light of Heller). Since Judge Sotomayor cannot, under the ground rules that are in play in this farce, actually give a definitive, informed answer to any question, she was unable to explain the law of recusal and expose the inanity of the question. Of course she must recuse from Maloney, but nothing in the recusal statute or in our common understanding of judicial ethics requires a judge to recuse simply because she previously decided a similar (or even identical) legal issue in a factually unrelated case while sitting. She also might have explained that, in order to be avoid being tagged (by Kyl and his colleagues) as a judicial activist, judges consider cases only in a particular factual context; this means there is no connection between the factually distinct cases in the different circuits and therefore no conflict. Otherwise, as Mark Tushnet argues, a circuit judge who interpreted a statute five years ago would have to recuse herself now when a different circuit created a split that the Supreme Court was called on to resolve.

I would use a different example. During the 1996-97 Term, while Glucksberg (the physician-assisted suicide case) was either pending or on its way up to the Court, Justice Scalia gave a speech in which he said something to the effect of "Of course there is no constitutional right to commit suicide." Scalia did not recuse (if he was not asked, there certainly was noise about why he should recuse), a decision I believed then was correct. Can it really be that it is OK for Scalia to state a legal view in a speech but not recuse, but that Sotomayor must recuse when she states a legal view (actually,the Second Circuit did not give a normative view on the incorporation question, but held that it was bound by precedent to conclude that the right was not incorporated) in a judicial opinion on the lower court?

An honest and thoughtful legal discussion might genuinely grapple with whether and when recusal is appropriate on purely legal questions, but that is not what we have here. Kyl was only interested in signaling that Sotomayor was biased against all gun owners, so she should feel pressure to recuse herself from hearing that cause; Sotomayor was only interested in not offending or angering Kyl, so she gave an answer hinting that she might take his suggestion of recusal seriously.

Well, maybe we are making progress. At least no one has suggested (directly) that she might recuse herself in any discrimination case involving women or Latinas.

Update: Sen. Sessions pursued the recusal question again this afternoon, arguing that Sotomayor had prejudged the issue by concluding that the right was not fundamental so as to be incorporated, at least under binding precedent. This seems to be a big talking point for gun-rights advocates--and a disturbing one, if we hope to be able to appoint experienced lower-court judges to the Supreme Court. Did anyone ask Judge Alito if he must recuse from every case involving abortion waiting periods?