The Supreme Court’s Recusal Problem

[groovedaddy]

Liberals in Congress have called for Justice Clarence Thomas to recuse himself from the review of the health care reform law because his wife, Virginia, has campaigned fervently against it. Conservatives insist that Justice Elena Kagan should remove herself from the case because, they claim, as solicitor general she was more involved in shaping the law than she lets on.

Interest groups keep stirring the fight, though, so far, no party in the case has asked either justice to step aside and experts in legal ethics generally concur that a strong case for recusal hasn’t yet been made. Even so, conflict-of-interest charges diminish the court and draw it further into politics. This latest fight should leave no doubt that when concerns are raised about a justice’s impartiality, it should not be left to that justice to decide whether to withdraw from the case.

It is time for the court to follow the model of the lower federal courts by adopting a transparent process for reviewing and deciding recusal requests. This is all the more important because the justices are the only federal judges who are not covered by a code of conduct.

Under the federal law that requires recusal when there is personal bias or other conflicts, the lower courts have developed sound standards and an evenhanded process, including appellate review of recusal decisions and a way to give advisory opinions on judicial conduct. Judges customarily explain their decisions in written rulings as a basis for review by other judges, which is important to bolster the perception of fairness.

http://www.nytimes.com/2011/12/01/opinion/the-supreme-courts-recusal-problem.html?nl=todaysheadlines&emc=tha211