House Judiciary Schedules Hearing on Judge Recusals

A House judiciary subcommittee has scheduled a hearing for Dec. 10 on the recusal of judges.

The National Law Journal reported last month on lawmakers' renewed interest in the issue, including plans to examine the process that federal judges use to decide recusal motions. Judges now have wide discretion to decide on their own whether to step away from a case, though their decisions are appealable.

Other than the federal judiciary’s codes of conduct, the U.S. Supreme Court has no formal guidelines for when a justice must recuse from a case. Justices are not required to explain their recusal decisions — as evidenced by Justice John Paul Stevens' surprise recusal Wednesday — and the decisions are not appealable.

No witnesses have been announced for the hearing, which was originally scheduled for Oct. 20. Among those invited to appear for the earlier date were Indiana University law professor Charles Geyh, who has studies the recusal process, and Judge M. Margaret McKeown of the U.S. Court of Appeals for the 9th Circuit, who is chairwoman of the Judicial Conference's Committee on Codes of Conduct.

The hearing will mark the first time Congress has addressed recusals in a significant way since 2004, when Democrats criticized Justice Antonin Scalia for declining to recuse in a case involving Vice President Dick Cheney. Scalia and Cheney were part of a group that went duck hunting in Louisiana while the case — involving records from Cheney’s energy task force — was pending. The nonprofits seeking the records eventually lost 7-2.

Comments

[Doc Merlin]

As far as I can tell, when most people ask for recusals, its a transparent attempt to get Scalia off the vote. Not allowing justices to decide their own recusals opens up the court for gaming.

[Carl Bernofsky]

On the occasion of this examination of judicial recusal, it is important to note that in many serious instances, the recusal statute, 28 U.S.C. § 455, is too general to provide effective guidance. In particular, it does not prevent an adjunct faculty judge from sitting in a case that involves the university that employs him or her, even when they are paid or otherwise rewarded for their services. This deficiency is easily remedied. See, for example,
http://www.ipetitions.com/petition/tulanelink
or
http://video.google.com/videoplay?docid=5203601110730482074

[Cynthia Gray, Director, American Judicature Society Center for Judicial Ethics]

It is not accurate to say "Other than the federal judiciary’s codes of conduct, the U.S. Supreme Court has no formal guidelines for when a justice must recuse from a case." The code of conduct for U.S. judges does not apply to Supreme Court Justices. But, like all federal judges, the justices are bound by 28 U.S.C § 455, which does not provide guidelines but requirements for when a judge is disqualified. It does not specifically cover every possible situation, of course, but it does have provisions regarding common situations and the general requirement that a judge "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." There are also disqualification provisions in 28 U.S.C § 455.

[ivan swift]

one of the most outrageous abuses of the recusal process occured in montgomery, alabama, when US Dictrct Judge fuller declined to recuse himself in the trial of former gov don siegelman. siegelman was governor when fuller got appointed judge so siegelman appointed a successor to fuller as district atty. uncovered in the succession were major issues -- including fuller having exxagerated -- to use a word that deserves a more criminal implication -- service of a staffer to illegally increase his pension. fuller ran a defense contracting agency out of his official office as judge. he and siegeman had been bitter political enemies for years. and he refused to recuse himself.