Thursday, January 22, 2004

Rehnquist Questioned on Cheney-Scalia Trip

CNN

Leahy and Lieberman asked "what 'canons, procedures and rules' are in place to determine when justices should recuse themselves from cases." The answer: nothing, beyond the federal statutes, because the ABA Codes of Judicial Conduct are just unenforcible guidelines (I discussed the Scalia situation and the federal statute, 28 USC 455 here) .

I've advocated a system in which the justices are allowed to recuse a collegue upon a party's request, perhaps on a majority or supermajority vote. This type of practice isn't unheard of in the federal system - I worked for a judge in the Central District of California this summer, and their policy is to have all recusal motions decided by a fellow judge.

Of course, the Supreme Court would probably balk at such a radical change in their practices - the justices are used to a great deal of autonomy, even compared to other federal judges. But as Constitutional officers in a nation in which no one is above the law, I think it's fair to ask the Court how they make decisions like this. If they don't have a system, I think it's also fair for Congress to request that they create one. Congress has the power to make a recusal rule for the Court, but I hope it doesn't come to that.

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