The problem with this rule is that the Supreme Court is really different from other courts. The advantage of this position is consistency of application to all federal judges. The first option is subjecting justices to the same ethical code, including recusal standards, as every other federal judge. Two alternative options have been widely circulated, but neither is very good. Justices make the initial recusal decision individually which can be reviewed by the senior judges below the Supreme Court. This process makes the least change needed. This creates a pool of judges who are experienced, unbiased, and effectively randomly selected. Just as importantly, chief judges in the courts of appeals are typically too old to be considered for promotion to the Supreme Court-other than Justice Stephen Breyer, none have been elevated in recent memory. The chief judges of each circuit are those who have the most seniority, but are under 65, have served for more than a year, and have never been chief judge before. The advantage of sending a matter to an outside panel of chief judges is that they are selected by a complex seniority system that is hard to manipulate. Decisions from that panel should be subject only to appeal to the full Supreme Court. I suggest that the Supreme Court authorize a panel of the seven most senior chief judges of the US circuit courts to hear appeals by parties to a case from individual recusal decisions of any Supreme Court justices. If the court or Congress decide to impose new rules in this area, they should consider implementing an external review process for the justices’ recusal decisions.Įssentially, the court’s practice allowing justices to resolve their own recusal questions has merit-the court is less effective when less than the full nine hear a matter.īut the court’s critics are also correct that allowing justices to decide these matters for themselves ought to be viewed skeptically-especially given the current divisive political moment. Yet, the process used by the court to decide if a justice should sit on a case-the recusal process-leaves it completely up to the justices to decide which cases they hear. Multiple US Supreme Court justices have faced questions recently about whether they should have heard certain cases based on conflicts of interest arising from their personal business dealings or relationships.
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