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.