The Interocitor

More on Supreme Court Recusals

Patterico has been having a field day on the Ginsberg/Scalia recusal question. (I've also posted a bit here and there.) Patterico's latest is here, discussing Scalia's refutation of the "duck hunt" controversy. Hidden well inside Friday's LA Times were two other tidbits, however. This one, on the bottom of page 18, about Ginsberg:

Thirteen Republican members of Congress on Thursday asked Supreme Court Justice Ruth Bader Ginsburg to withdraw from all future cases having to do with abortion because of her affiliation with the NOW Legal Defense and Education Fund.

The House lawmakers said in a letter to the liberal justice that they were concerned about her loaning her name and presence to the Justice Ruth Bader Ginsburg Distinguished Lecture Series, which is co-sponsored by the defense fund, because the fund often files legal briefs in cases before the high court.

Ginsburg, in a speech last week, defended her relationship with the group and said Supreme Court justices are reluctant to recuse themselves in individual cases because it could lead to tie votes in the high court.

Over on the op-ed page, Erwin Chemerinsky suggests that it's all Rehnquist's fault for letting each justice decide such matters themself.

The deeper problem is with Chief Justice William H. Rehnquist, who is perpetuating a rule that prevents such errors from ever being corrected. He has committed the Supreme Court to an each-justice-decides-alone position that places individual decisions beyond review.

But it is not too late to address the broader policy problem. Judicial disqualification is a serious matter for the U.S. Supreme Court, which depends on public confidence for its legitimacy. In the future, Rehnquist could demonstrate real leadership by referring disqualification issues to the court itself, to be decided by a vote of all nine justices. If he continues to avoid the question, however, Congress should step in by enacting a statute mandating full consideration every time a justice's impartiality is in dispute. The reputation of the Supreme Court is at stake. Surely that is too important to rest in the hands of any individual justice.

Note that Professor Chemerinsky sees this as an issue solely with Scalia (in several instances), as the names of other possibly conflicted justices never enter the argument.

But I'll let Justice Ginsberg have the last word here, refuting the good professor's brief:

In her comments Friday, Ginsburg said recusals are frowned upon by the justices.

''In the end, it's a decision the individual justice makes, but always with consultation among the rest of us,'' she said.

She said the Supreme Court is unique because the justices cannot be replaced by outsiders.

''On the Supreme Court, if one of us is out, that means there are only eight,'' she said. ``There is a risk we will not be able to decide the case -- that it will be divided evenly. Some of my colleagues think a recusal in the Supreme Court is equivalent to a vote against the petitioner.''

She did not cite an example to illustrate her point. But if Scalia were to recuse himself from the Cheney case and the court were to split 4-4, the vice president would lose, and he would be obliged to turn over documents detailing who advised his energy task force.

''There is no one to replace us,'' she said. ``It makes it quite important that we not lightly recuse ourselves.''

Posted by Kevin Murphy at March 19, 2004 08:31 AM | TrackBack