| James N. Markels | ||||
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by
James N. Markels Normally
I like to focus on a topic I’ve not written about in a previous
column, but since my last column on conflicts of interest in the Supreme
Court there have been some developments that better informed the issue
and perhaps raise a solution. In
the last issue of The Docket I wrote about the furor over Justice
Antonin Scalia’s refusal to recuse himself in a case concerning Vice
President Richard Cheney when it was found that Justice Scalia had gone
duck hunting with the Veep soon after the Supreme Court issued
certiorari in the case. I
pointed out how Justice Ruth Bader Ginsburg had similarly refused to sit
out of cases where the American Civil Liberties Union—an advocacy
group Justice Ginsburg worked for before becoming a judge—was a party,
and I wondered, “How does one duck hunt compare to eight years as an
in-house counsel and board member?” So
you might have colored me surprised when just one week later the Los
Angeles Times ran a story questioning Justice Ginsburg’s decision
to not recuse herself in cases involving the National Organization for
Women when the Justice has become closely involved with an annual
lecture series that NOW sponsors. In
fact, that lecture series is titled, “the Justice
Ruth Bader Ginsburg Distinguished Lecture Series on Women and the
Law,” where the Justice is a keynote speaker and pictures of the
Justice are used to advertise the event—but not for fundraising. Law
professors had a mixed reaction to the news.
Prof. Monroe Freedman at Hofstra University argued that the
Justices should “draw the line at cause-oriented litigation
organizations” like NOW. But Prof. Stephen Gillers at New York University rejected the
idea that “judges should lead monastic lives . . . I think judges and
justices should participate in broad legal debates, but within
restraints.” Justice
Ginsburg rose to her own defense, making a number of insightful points.
For one, when judges recuse themselves in other courts, another
judge is assigned to replace them.
However, on the Supreme Court, there are no “backup
Justices.” This raises
the risk of a 4-4 vote split leaving an important question of law
peculiarly unsettled. “Some
of my colleagues think a recusal in the Supreme Court is equivalent to a
vote against the petitioner,” the Justice said, because a 4-4 split
effectively makes the petitioner lose.
Justice Scalia reiterated that argument in his 21-page decision
last week to not recuse himself from the Cheney case: “The
petitioner needs five votes to overturn the judgment below, and it makes
no difference whether the needed fifth vote is missing because it has
been cast for the other side, or because it has not been cast at all.” While
she stated that Justices should not “lightly recuse” themselves,
Justice Ginsburg noted that the rule is especially strict on financial
interests. “If I owned
one share of General Motors, I couldn't sit on that case,” she said as
an example. On the other
hand, familial affiliations weren’t quite as serious. Four of the Justices have a spouse or child who practices
law, and those Justices have a formal agreement between them to not
recuse themselves just because that relative’s firm is involved in a
case before the Court. And Chief
Justice William Rehnquist added a couple of comments to the fray on the Today
show two weeks ago, where he indicated that he would not recuse himself
in a case merely over social ties, such as if a member of his regular
poker group was involved in case argued before the Court.
Taken
together, we’re starting to see the picture of how the Court deals
with conflicts of interest. The
emphasis seems to be on financial bias, rather than personal
or jurisprudential bias. In
other words, the Justices tend to accept that each of them have pretty
well-formed ideas as to how they approach the law, and it’s perfectly
natural for them to speak before groups that share these ideas and
consort with their legal peers. Although this might be considered “bias” in a traditional
sense, it would be foolish to think that anyone could achieve the
highest Court in the land without some kind of developed jurisprudence,
whether it be friendly to NOW and the ACLU in Justice Ginsburg’s case
or the Federalist Society in Justice Scalia’s.
Perhaps a kind of “constant conflict” is inevitable on a
Court where the stakes are the highest anyway. But maybe this is also simply the natural result of
the system. As Justices
Ginsburg and Scalia have pointed out, when recusals cannot be replaced,
the bar will be set higher to minimize the potentially negative side
effects of having fewer Justices decided a case.
If you don’t want the bar lowered, change the system.
That would mean creating a body of replacement judges to fill in
for recusals. This would
not need to be a large group, since recusals should still not be common,
but it should consist of federal judges due to the nature of the cases
that come before the Court. The
judges would have to come from all the different Circuit Courts of
Appeal so that if the issue happens to be one where the Circuits have
split, there could be a replacement that would not be a judge from one
of the Circuits that has weighed in on the matter.
And it would be best if this replacement group could be selected
without partisan wrangling. Put within those constraints, the choice seems
obvious: Designate the Chief Judge of each Circuit as a potential
fill-in for the Justices. Chief
Judges are appointed by a non-political process under 28 U.S.C. § 45,
so their jurisprudence plays no factor in whether they get the position
or not. The commission is
based on purely rote factors like age and seniority on the Circuit.
These judges all focus their experience on the issues the Supreme
Court handles, and all of the Circuits are represented. It works, but I wouldn’t hold my breath expecting this to
happen. |
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