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Tag Archives: recusal

Lawmakers push Supremes to adopt formal recusal rules

Despite assurances from Chief Justice John G. Roberts that such a move was unnecessary and unwise, a group of lawmakers is pushing the Supreme Court to drop its current self-policing policy for recusals and formally adopt the same judicial code of ethics that binds other federal judges.

“Because the Supreme Court does not adhere to the code of conduct for (other) United States judges, they have granted themselves immunity from the standards of behavior that apply to every other justice in the land,’’ said Rep. Louise Slaughter, D-N.Y. yesterday during a press conference in front of the Court, according to the Democrat and Chronicle.

Slaughter is one of 31 lawmakers who sent a letter to the Court yesterday demanding that it adopt the Judicial Conference’s Code of Conduct. In his year-end report on the state of the judiciary, Roberts pushed back at the growing number of critics who questioned the way the justices decide whether or not to participate in a case, saying that the justices do consult the Code as well as other sources of ethical guidance. That the process works, he said.

“I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” Roberts wrote.

Still critics have assailed, among other things, the decisions of Justice Clarence Thomas and Elena Kagan to participate in the case challenging the constitutionality of the health care law. The 31 democratic lawmakers who signed the letter to the Court also cited the close ties between Justices Antonin Scalia and Thomas to big conservative campaign donors.

In defending colleagues, did chief justice insult federal judges?

As critics of Justices Clarence Thomas and Elena Kagan amplify their calls for the justices to recuse themselves from the health care case, Chief Justice John G. Roberts used his annual year-end report on the judiciary to defend his colleagues.

But in doing so, did the chief justice take a swipe at federal judges on the nation’s lower courts? At least one thinks so, according to The Atlantic’s Andrew Cohen.

In explaining why Supreme Court justices need not be bound by the exact same judicial codes as lower court judges, Roberts pointed out what he saw as some differences between justices and judges.

“The Supreme Court consists of nine members who always sit together, and if a justice withdraws from a case, the Court must sit without its full membership,” unlike federal courts where recused judges are replaced, Roberts wrote. “A justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.”

Those words angered one veteran federal judge, who wrote to Cohen in response, saying Roberts’ statement was “gratuitously insulting all judges and justices who adhere to the law.”

“The duty to sit is just as obligatory as the duty to recuse when the facts require or justify recusal. I don’t suggest that some judges may withdraw ‘as a matter of convenience or simply to avoid controversy,’ but if they do, they are beneath contempt,” commented the judge, whom Cohen did not name.

The judge added: “For ‘convenience or simply to avoid controversy,’ I have about 35 class actions, a death penalty habeas corpus case requiring my personal examination of over 10,000 pages of transcripts, briefs and opinions – to say nothing of the idiotic Fair Debt Collection Practices Act cases plaguing my docket that have all the sophistication of traffic violations – it would be a relief to withdraw from, if I had not taken an oath. I think it’s the same oath the chief justice took.”

Mukasey: Supreme healthcare recusal calls ‘nonesense’

Former Attorney General Michael Mukasey thinks the arguments being made by those calling on Supreme Court Justices Clarence Thomas and Elena Kagan to recuse themselves from consideration of the health care challenge are “nonsense.”

In an editorial today in the Wall Street Journal, Mukasey, who helmed the Justice Department for two years under President George W. Bush, takes on critics who think the justices should be disqualified because of Thomas’ wife’s work for groups advocating for the law’s demise and  Kagan’s work as solicitor general when the health care challenges began.

Mukasey takes a strictly legal approach to the situation. The facts underlying the allegations of potential bias do not raise to the level of federal recusal standards, he concludes.

Mukasey wrote; “upon even a cursory examination of the facts it is clear that neither justice should step aside. The court we have should decide the case.”

He noted, however, that the calls for the justices to step aside are not legal at all, but rather a political – a symptom of the increasingly politicized atmosphere the justices face from the time that they sit before the Senate for confirmation.

“The selection of judges has become a high stakes exercise for agenda-driven politics, with nominees often selected with at least one eye focused on their expected tilt on the issues of the day,” Mukasey wrote. “[Later, w]hen contentious cases then come before them, the agenda-driven politics that helped seat the judges does not disappear, nor do the stakes diminish; they rise—along with incentives to disqualify judges.”

Lawmakers turn up pressure on Thomas, Kagan over health care conflict questions

Members of Congress are amplifying their calls to judicial and Justice Department officials demanding investigations of two Supreme Court justices’ alleged conflicts of interest in the health care reform case pending at the Court.

Since the Court agreed to consider the constitutionality of the federal health care reform law’s individual mandate as well as several other substantive and procedural issues related to the law, calls from members of Congress for Justices Clarence Thomas and Elena Kagan to sit out have grown louder.

Friday New York Democrat Rep. Louise Slaughter sent a letter, signed by 52 House members, to the U.S. Judicial Conference requesting a Justice Department investigation into Thomas’ initial failure to include on financial disclosures his wife’s income from organizations opposing the health care law. It’s the second time the lawmaker has asked the Conference to refer the matter to the U.S. Attorney General.

In January, Thomas amended the disclosure forms, calling the initial omission of his wife, Virginia Thomas’ income from the Heritage Foundation an oversight attributable to a “misunderstanding of the filing instructions.”

Meanwhile Senate Republicans are also pressing Attorney General Eric Holder over the health care case, seeking information on whether Kagan’s work as solicitor general creates a conflict of interest that precludes her involvement in the case.

According to Politico, Sens. Mitch McConnell, R-Ky., Jon Kyl, R-Ariz., Chuck Grassley, R-Iowa, and Mike Lee, R-Utah, sent a letter to Holder saying the Justice Department has handled questions about Kagan in a “highly questionable manner” and demanding clarification on Kagan’s role.

“Your Department’s refusal to provide information to the Congress that could eliminate this apparent conflict of interest only undermines … confidence [in the administration of justice] further,” the letter stated.

Emails recently released from the Justice Department reveal that, in 2010, then-Solicitor General Kagan called Senate support for the health care bill “simply amazing.”

Solving SCOTUS recusal problem by designation?

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.”

Breyer defends Thomas in ethics controversy

While Justice Clarence Thomas has come under fire for his wife’s Tea Party activities, his colleague came to his defense this week

During an appearance at the Aspen Ideas Festival on Wednesday, Justice Stephen Breyer was asked a hypothetical about a judge whose wife is involved in issues that may go before the judge’s court. Breyer, according to the Daily Beast’s Lloyd Grove, gave an emphatic defense of Thomas’ situation.

“This is a false issue,” Breyer said. “As far as what your wife does or your husband does, I myself try to stick to a certain principle, and feel very strongly about it, that a wife or a husband is an independent person and they make up their own minds what their career is going to be.”

Some lawmakers and activists have called on Thomas to recuse himself from hearing the constitutional challenge to the health care law, which will land before the Court as soon as next Term. His wife, Virginia “Ginni” Thomas, has been involved with Tea Party-related groups that have openly called the law unconstitutional.

Breyer said spouses don’t influence justices on the bench. “My wife happens to be a clinical psychologist at Dana Farber [Medical Center in Boston], and when I get cases involving psychology, I sit in those cases, OK?” Breyer said.

Breyer also hinted that he believes proposed legislation that would bind Supreme Court justices to the same ethical code as other federal judges is a bad idea.

“The Supreme Court is different in one respect. In every other court,” Breyer said. “If [I’m a circuit judge and]I decided in a close matter to recuse myself, that’s the easy decision. That’s one fewer case I have to decide, and besides, they’ll bring in somebody else to decide it. If I recuse myself on the Supreme Court, there is no one else and that could switch the result.”

Alito recusal ‘mistake’ cost networks in fleeting expletive case (access required)

Justice Samuel Alito said he should have recused himself from considering a 2009 Supreme Court case involving federal penalties for televised profanity – a move that would have changed the outcome of the case.

When the Court took up the case FCC v. Fox Television Stations, Alito held about $2,000 worth of stock in Disney, the parent company of ABC, one of the parties in the case, the Associated Press reports. Usually justices who have a financial interest involving any party in a case before the Court will either recuse themselves from considering the case or eliminate the financial interest – usually by selling stock.

But Alito said he failed to do so in that case due to an oversight on the part of aides who routinely check for conflicts before cases are considered by the Court. Alito has since sold the stock, a fact reported on his latest financial disclosures released last week.

“It’s a mistake,” Alito told the AP in an interview.

The mistake had a direct effect on the outcome of the case, in which the Court reversed the 2nd Circuit and held in a 5-4 vote that the FCC’s policy to ban even an isolated use of an expletive on broadcast television was “entirely rational” under the law that governs federal administrative powers. Had Alito, who voted with the majority, not participated, a 4-4 tie would have resulted in the 2nd Circuit ruling in the networks’ favor being upheld.

Group wants Scalia to recuse from Wal-Mart case (access required)

An advocacy group supporting the workers in the class action job bias case Wal-Mart Stores v. Dukes wants Justice Antonin Scalia to sit out when the case is heard at the Supreme Court later this month.

Walmart Watch, a union-backed group that “exists to challenge Walmart to more fully embrace its corporate responsibilities,” according to its website, objects to Scalia’s participation in the case because the justice’s son, Eugene, is a partner at the firm Gibson Dunn, where he represented the company.

“Eugene Scalia’s connections to the plaintiff and to one of the Justices hearing the case, his father, Justice Scalia, raise serious concerns over judicial impartiality and may raise the appearance of impropriety,” the group stated on its website, linking to an online petition urging Scalia’s recusal. “The public’s confidence in an impartial judiciary is of utmost importance.”

The group has failed to sway the attorney representing the workers, who are seeking class action status alleging the company systematically underpaid female employees. Joseph Sellers, who represents the women suing Wal-Mart, told Bloomberg News that he was not taking up the recusal cause.

“We’re busy preparing for the argument,” Sellers said. Arguments in the case are scheduled for March 29.

More on the case here from Lawyers USA.

Breyer recuses self in Monsanto; Critics ask: why didn’t Thomas?

During oral arguments at the Supreme Court yesterday in the case Monsanto Co. v. Geertson Seed Farm, involving a court-imposed ban on the sale of genetically-altered alfalfa plants, Justice Stephen Breyer was not present.

That’s because the justice recused himself from hearing the case. His brother, U.S. District Court Judge Charles R. Breyer, was the trial judge in the case, so there was a conflict.

Breyer wasn’t the only justice with ties to the case. Justice Clarence Thomas once served as corporate counsel for the petitioner company Monsanto Co. And that has some environmentalists wondering why he too did not excuse himself from the case’s consideration.

This isn’t the first time Thomas’s stint at Monsanto has raised questions from critics. In the film “Food, Inc.,” which is critical of the genetically-modified food industry, Thomas’s connection to Monsanto is highlighted – particularly a 2001 Court opinion authored by Thomas that allowed companies like Monsanto to patent hybrid seeds.

After the film’s release, Monsanto issued a statement about Thomas’ connection to the company.

“Clarence Thomas worked for Monsanto for a few years but has not been employed by Monsanto since the 1970s, long before the company was involved in biotechnology or owned a seed business,” the statement read. “While Justice Thomas indeed wrote the majority opinion, this was a 6-2 decision. Justice Thomas was joined by Chief Justice Rehnquist, and Justices Scalia, Kennedy, Souter and Ginsberg – none of whom have or had any association with Monsanto.”

State courts mull post-Caperton recusal rule changes

Lawyers expected that the U.S. Supreme Court’s ruling in Caperton v. A. T. Massey Coal Co. would lead to more judge recusals where conflicts of interest are apparent. Now the head of Ohio’s state judiciary is calling for a review of recusal rules for elected judges in the state.

Ohio Chief Justice Thomas Moyer will call for a new policy addressing what judges must do when cases involving campaign donors come before them. He plans to discuss the issue with his justice colleagues, and then hold a conference later this year to consider judicial reforms, a court spokesman told The Cleveland Plain Dealer.

“This clearly offers an opportunity to reinvigorate the discussion of judicial reform in Ohio,” court spokesman Chris Davey told the Plain Dealer on Moyer’s behalf.

As Lawyers USA reported, in some states, including Michigan and Wisconsin, courts have already begun reviewing their recusal policies and considering proposals to tighten the standard for when a judge must remove him or herself from a case.