Judicial Independence, Impartiality and the Ethics of Recusal
National Public Radio ran a long piece on judicial ethics and recusal on Morning Edition this morning. The piece discussed instances in the past few years where Justices’ spouses, personal lives, or private speaking engagements caused criticism, particularly where Justices did not recuse themselves from cases where these connections created an apparent ideological conflict. As noted in the NPR piece, Supreme Court Justices do not have a formal code of ethics, but merely “rules of the road” under the Constitutional mandate that they hold their offices “during good behavior”.
Conflicts cited in the story include Justice Thomas’s wife’s political activities and income; Justice Scalia’s hunting trip with then-Vice-President Dick Cheney; Justice Alito’s attendance and speeches at fundraisers for the American Spectator magazine and Justice Kagan’s former employment as solicitor general under President Obama’s administration. The conflicts are varied, with concerns about money or public endorsement of ideology causing greater concern than those of personal associations or former professional ties.
Support for holding the Supreme Court to the Federal Code of Judicial Ethics has been growing steadily. In February, a group of law professors wrote a letter to Congress (.pdf), asking the judiciary committee to adopt a formal code of ethics for the Supreme Court. Representative Chris Murphy (D-Ct) has presented legislation (.pdf) to do so, although, as the NPR piece points out, there are legitimate criticisms of the bill.
As we noted in this blog, the American Bar Association voted on a resolution advocating recusal standards for judges in the state courts at its annual meeting this month. The delegates voted to adopt the resolution, Resolution 107 (.pdf), which calls for states to adopt clear new rules for recusal in cases where campaign spending by litigants or lawyers causes a judge’s impartiality to be questioned.
Judicial independence and judicial impartiality are no small matter; it behooves the members of the judiciary to support clear, uniform standards and procedures for recusal. At Chicago Appleseed, we will continue to work toward setting recusal standards and systems for promoting efficient use of Motions for Substitution of Judge as of Right in order to promote judicial independence.