Saturday, April 03, 2004

On Language On Recusal

William Safire wonders whether a judge "recuses himself" or simply "recuses." Scalia seems to prefer the latter approach (in his recent memorandum, he wrote: ''I do not think it would be proper for me to recuse.''), but I'm pretty sure the former is more common.

A judge from my home state of Washington offers this insight:

". . . [T]o recuse is to challenge the judge. In response, the judge may or may not disqualify himself; he does not recuse himself. Recusal is the process that results in the judge's disqualification."

This statement, if true, would mean my paper on the subject is stuffed full of mistakes - I used the terms interchangeably. While it is entirely possible (likely even!) that I wrote a paper full of errors, I think I have good support for my choices this time: Justice Scalia. Check out these portions of Liteky v United States, 510 US 540 (1994), in which Justice Scalia, writing for the majority, last spoke on recusal in a published opinion:

"Petitioners appealed, claiming that the District Judge violated 28 U.S.C. § 455(a) in refusing to recuse himself." Id at 543 (emphasis added).

"Since 1792, federal statutes have compelled district judges to recuse themselves when they have an interest in the suit, or have been counsel to a party." Id at 544 (emphasis added).

Until Justice Scaila responds to this post and explains himself, I'm going to stick with his earlier choice in my future recusal writings. Stare decisis and all that.

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