Recusal Practice in the Supreme Court

Whether Judge Kavanaugh is confirmed or not, I think it’s fair to say that he’ll be getting a lot more recusal motions based on his Senate testimony responding to the allegations against him. This raises a question, which is whether the Supreme Court should formulate clearer standards for recusals. As of now, there are none. Each Justice gets to decide for himself or herself when to recuse, and when they do they do not explain why.

To some extent, this lack of transparency makes sense. If people know that a Justice will recuse in a particular circumstance, then they can try to game the system. Nonetheless, I think when a Justice declines to recuse when a motion is brought, an explanation should be required. (Justice Scalia, for instance, did so when challenged in case involving Vice President Cheney because they went duck hunting together.) No doubt Judge Kavanaugh would prefer to reject recusal motions based on his testimony without comment, but I hope the Court develops a contrary norm.

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3 Responses

  1. Curmudgeonly Ex-Clerk says:

    I don’t mean this be harsh (truly), but I think anyone in favor of a recusal standard either is hopelessly naive or intends the mischief that inevitably would result from such a rule. It would be nothing but a vehicle for lawfare by hyperpartisans.

  2. Brett Bellmore says:

    I think there’s a very strong case for him recusing himself if Blasey Ford ever has a case before the Supreme court. Demanding that he recuse himself in the case of litigants belonging to half the political spectrum would be a bit much, though.

    But that’s probably what the recusal motions will be demanding, with as little basis as demanding that RBG recuse from cases involving the other half of the spectrum.

  3. Joe says:

    I am for openness and would think an explanation of recusal would be good policy. Now, like is the case for how justices act on certain orders and so forth, we have a sort of Kremlinology when reporters try to read between the lines. This is a bit silly in my view.

    To toss it out there, a clear policy regarding ethics in general should also be present for justices too. Separation of powers issues might be involved here, but at least advisory standards should be possible. Justices can explicitly vote on the issue and provide a statement on the website that they will voluntarily agree to certain guidelines.

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