Questions for the Judge

Submitted by brad on Mon, 2020-10-12 11:57
Topic: 
Politics

If a judge were hearing a case, and the judge were known to have a strong positive bias or strong resentment of a party before the judge, should the judge recuse?

In our justice system, do we allow parties to a case to select which judge will hear their case? Why?

How do we currently assure that parties do not get to pick their judge?

If you learned that in a case that party in a case before a court had been able to somehow pick their judge, should that judge recuse?

Do you believe that recusal, should be done to avoid the appearance of impropriety, bias or conflict of interest even if the judge in question may not be himself or herself demonstrably biased?

If a judge were to hear a case involving a private citizen who, in their role as a public official, had appointed the judge to the court, should they recuse?

If the private citizen had declared, before appointing the judge to the court in their public role, that he or she was making the appointment with a particular goal of having that judge hear an anticipated case involving the private citizen, would this be a reason for the judge to recuse?

If not, what is the significant difference between that and any other method by which a party to a case might arrange to select their judge?

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Comments

FKA

Mon, 2020-10-19 11:59

Are we talking about a Supreme Court Justice, or some other judge?

brad

Tue, 2020-10-20 11:18

There would be few things different about a Supreme court justice. The main thing that would be different would be hearing cases involving the President -- as his office, not as a private citizen -- or Senators in their official capacity. The reason you might consider an exception there is that such bodies, especially the President as President, are before the court extremely frequently, so recusal is not practical (though there is still some argument for it if it's overtly stated that the President appointed the judge to decide a specific case his way.)

However, it's quite rare for Presidents to appear as private citizens before the court. The parties in Bush v. Gore were not yet President, one was a VP.

The rule for recusal is not actual bias, it is the appearance of bias.

FKA

Mon, 2020-10-26 07:03

I'd answer completely differently when it comes to Supreme Court justices. SCOTUS makes its own rules. The lower courts follow those rules.

The rule for recusal is not actual bias, it is the appearance of bias.

That rule doesn't apply to SCOTUS justices, though.

brad

Mon, 2020-10-26 12:42

It was actually a SCOTUS judge who said that but I am trying to remember which.

FKA

Mon, 2020-10-26 19:13

I suspect you're misquoting or taking the quote out of context.

You'll probably find the Scalia memorandum on his refusal to recuse in the Cheney case enlightening. In it he specifically says that SCOTUS is different. ("On the Supreme Court, however, the consequence is different")

What do you mean by a "rule" anyway? The statute says that recusal is required by a justice in "any proceeding in which his impartiality might reasonably be questioned." 1) "reasonably" is key; it is an objective standard and not a subjective one; and 2) I'd argue that statute is unconstitutional as it applies to SCOTUS.

brad

Tue, 2020-10-27 10:54

They make the rules, but they follow tons of the principles of jurisprudence established in many places (including English common law, not just the USA.) If they want to violate them they do it deliberatively, with a a detailed reasoning and an argument of why it's consistent with the constitution. They are not dictators.

FKA

Sat, 2020-10-31 06:35

I'm still not sure what rules you're referring to. In most cases SCOTUS wouldn't be violating a rule, because most of the rules don't apply to them.

But yes, they follow certain principles, and they do so deliberatively. One of those principles is that the considerations are different for SCOTUS justices, because they're in a different position.

When a trial court judge, or a judge on an appelate panel recuses themself, they are replaced by someone else. A judge on an en-banc appellate hearing isn't replaced by anyone else, but a tie decision can always be appealed to the higher court. With SCOTUS, there's no replacement, and no appeal. (Justice Scalia explains this, more eloquently than I, in the link above, but I repeat it in case anyone tldred the link.)

With all that said, I do think that there are occasions where SCOTUS justices should recuse, and while you haven't outlined a specific hypothetical, I do think that ACB should recuse herself if a case like Bush v. Gore came to the Court regarding the 2020 election.

That may have been the question you were really asking, but the questions you did ask were much more vague and the answer to most of them is "it depends."

brad

Sat, 2020-10-31 11:26

ACB recused on the first election case, though that has a more simple explanation that she didn't hear the entire case, of course. But that says she feels some of the rules apply to her.

FKA

Sat, 2020-10-31 17:15

Of course some rules apply to her. You can't seriously be suggesting she didn't know that.

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