Litigation

?On Recusal, Justices Should not be Sole Judge?

By Peter Hardin

Justice Elena Kagan’s donning the robes of a Supreme Court justice this week, and her decision to sit out 25 of the 51 cases accepted by the court so far, has prompted some thinking in lofty places about supreme recusal.

A New York Times editorial, headlined “Recusals and the Court,” applauds Justice Kagan for “making the right choice,” given her prior job as solicitor general and her involvement with cases that have landed on the high court’s docket.

But the editorial goes further, declaring quickly that “the court?s voluntary system of recusal isn?t enough to protect its impartiality and credibility.” It recounts Justice Antonin Scalia’s decision to go duck hunting with then-Vice President Cheney in Louisiana, and not to disqualify himself from a case involving Cheney.

In addition, the editorial recaps Caperton v. Massey, the landmark recusal case from West Virginia.  The high court ordered a state Supreme Court justice to recuse himself from hearing a case involving a mining company whose chief executive officer had spent $3 million to help elect the jurist.

Sen. Patrick Leahy, the Senate Judiciary Committee chairman, is looking at ways to tap retired justices to hear a case when another justice steps aside (see Gavel Grab). The Times editorial suggests the bill in inadequate, and there is a need for checks and balances beyond the high court’s existing voluntary system. It concludes:

“Justices have life tenure to assure their independence and impartiality. They should not be the sole judge of whether they are meeting that standard.”

Full post as published by The Gavel on October 08, 2010 (boomark / email).