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Leahy to Introduce Bill Allowing Retired Justices to Fill Slots in Case of Recusal

By Eric Lipman

Picture retired Supreme Court Justice David Souter as Al Pacino in "The Godfather III" -- "Just when I thought I was out, they pull me back in!" If Sen. Patrick Leahy has his way, Souter, and any other retired justice, could be a special guest star for future cases where one of the active members of the Court has to recuse himself (or herself) because of a conflict of interest. As reported in this morning's National Law Journal, the idea was that of departing Justice John Paul Stevens, and Leahy supports it because it would eliminate the very real threat of 4-4 decisions, which, under the rules, result in an effective affirmation of the lower court's decision. Leahy said he has a bill drafted and ready to go, though his office won't release the details. David Ingram's article in the NLJ cites several recent instances where justices who arguably had a conflict declined to recuse themselves, and cited the possibility of evenly split decisions as one reason. The article also quotes Indiana University Law School Professor Charles Geyh as warning that such a procedure could "politicize" disqualification of Justices and encourage "gamesmanship." If this passes, I would call on Sen....

Full post as published by Legal Blog Watch on June 17, 2010 (boomark / email).