At a time in national politics when donkeys and elephants traditionally take center stage, a new animal has emerged and stolen the spotlight: the duck. Recently, a controversy has erupted over Supreme Court Justice Antonin Scalia’s January 2003 duck-hunting trip with the Vice President Dick Cheney, a litigant in the pending Supreme Court case Richard B. Cheney v. U.S. District Court. Upon learning of the outing between the justice and the vice president, lawyers for the Sierra Club filed a motion requesting Scalia’s recusal. The Court deferred the decision to Scalia, allowing him to determine for himself whether his “impartiality might reasonably be questioned” by his recent trip with Cheney.
In a 21-page memorandum, Justice Scalia announced that he would not recuse himself from the pending litigation, and over the past week an outburst of criticism regarding his decision and the procedure of determining justice recusal has ensued. A number of published commentaries suggest a unified alternative to the traditional “do-it-yourself recusal” procedure used by the court.
In the March 19 edition of the Los Angeles Times, law professors Erwin Chereminsky (University of Southern California) and Steve Lubet (Northwestern University) propose that the entire bench should determine the impartiality of the justice in question. A March 18 Newsday commentary frames the alternative more forcefully, stating that “if Scalia doesn’t see the light, the full court should shine it in his eyes.” But while this alternative may seem advantageous to the current policy, it is important to see that this theory will be much harder than expected to put into practice.
Asking Scalia’s fellow justices to be the judge of his impartiality is in and of itself a determination made by partial judges. The members of the Supreme Court have served together for a number of years, and it can thus be expected that some have cultivated relationships (social and/or political) with each other over that time. Superficially, there seems to be something unnatural about this: partial judges making a determination of impartiality.
On a deeper level, there are a number of specific dilemmas that arise from the relationships that the members of the court share with each other. First, as a matter of bench etiquette, the justices would be reluctant to recuse a fellow justice. A vote to recuse is likely to be interpreted as a severe insult to the integrity of a colleague; and in the highest court of the land, where respect runs strong, can it be believed that such a slap on the wrist would be welcomed? Does the social atmosphere of the court, then, not preclude impartiality among its members?
Secondly, justices possess an understanding of the game making them unwilling to vote to recuse a colleague; they know the tables could easily turn. A justice’s fear that one day, he or she might be put in the hot seat would be enough to deter participation in such a procedure. As a matter of personal dignity, justices do not want to be told by others that they are unfit to judge and incapable of rendering a fair decision.
Lastly, as a matter of politics, some justices would be hesitant to recuse another judge for fear of losing a key vote in the pending decision. Let us assume for a moment that even the Supreme Court exercises a degree of political maneuvering in its decision-making. A projected 4 to 4 split on the upcoming case would make the vote of the justice in question critical. Could the members of the court be expected to make an impartial decision regardless of the effect their recusal vote would have on the ruling of the case? Is there not, then, a degree of political relationship that makes the justices partial to each other? To be even more cynical, it seems as if justices would be unwilling to vote a potential ally off the judicial island in one particular case, for fear of losing support in another future battle.
If one accepts the notion that an individual justice cannot make a fair determination of his or her impartiality because of bias, then it seems to follow that the other justices would also be unable to make that determination due to their bias. Furthermore, when considering the workability of the proposed alternative, it is worthwhile to note that the policy of “do-it-yourself recusal” is what the court has determined for itself. In fact, the Center for Individual Freedom reports that the justices have recused themselves from over 500 cases in the past five years. Amidst the plethora of criticism on the current policy, there has been a lack of publicized criticism from the justices themselves. Perhaps, then, the Supreme Court has already answered the question of whether or not the proposed alternative of “recusal by others” can be put into practice.
Howard Kim is a freshman in Jonathan Edwards College.