As the debate heats up over what recusal standards, if any, justices of the U.S. Supreme Court should be bound by, there remains the related issue: when a justice recuses, the problematic possibility of a 4-4 tie is born.
But Indiana University School of Law Professor Gerard N. Magliocca suggested a possible solution to that problem: federal circuit judges sitting by designation on the high court when a justice sits out.
In a post on the blog Concurring Opinions, Magliocca writes: “After all, we let federal district judges sit by designation in the circuits all the time. This could be subject to some limits (only active judges, or not judges from the federal circuit whose ruling is being reviewed), the most of important of which is that the selection should be random instead of under the control of the Chief Justice. I think the judicial system might be improved if the Justices were subject to the same recusal standards that other judges follow and if there was an occasional ‘special guest star’ appearance by other judges on the Court.”