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A question of recusal.

Byline: The Register-Guard

When the U.S. Supreme Court hears the challenge to the 2010 health care reform law in March, all nine of its members are likely to be in attendance, despite calls for Justices Clarence Thomas and Elena Kagan to disqualify themselves from the case.

Based on the information that has surfaced to date, the participation of both Thomas and Kagan seems appropriate. Neither has crossed anything resembling a bright ethical line requiring recusal. As Stephen Gillers, an authority on legal ethics at New York University, recently told The New York Times, "It's not even close."

Critics on the left have called for Thomas to recuse himself because his wife, Virginia, has worked with groups opposing the law. Others on the right insist Kagan should withdraw because of her possible involvement in crafting the law when she served as solicitor general.

The fact that people on the left, who support the health reform law, want Thomas to recuse himself and that people on the right, who oppose it, want Kagan to do the same, is hardly surprising, since the withdrawal of either justice could swing a decision in their favor. It's also a revealingly partisan position.

The calls for recusal recently drew a strong response from Chief Justice John Roberts, who in his annual report on the federal judiciary on Saturday included comments that, while mentioning neither Thomas nor Kagan by name, left little doubt about to whom they referred. "I have complete confidence in the capability of my colleagues to determine when recusal is warranted," Roberts stated.

Roberts noted that the recusal of justices creates unique problems for the Supreme Court. "If an appeals court or district court judge withdraws from a case, there is another federal judge who can serve in that recused judge's place," he wrote. "But the Supreme Court consists of nine members who always sit together, and if a justice withdraws from a case, the court must sit without its full membership. A justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each justice has an obligation to the court to be sure of the need to recuse before deciding to withdraw from a case."

Roberts added that the Supreme Court's unique status makes it impossible for the justices to follow the recusal practices of lower-court judges. That's because, he said, Supreme Court justices, unlike lower court judges, cannot be replaced if they decide to disqualify themselves, and their decisions about recusal cannot be reviewed by higher courts. "Indeed, if the Supreme Court reviewed those decisions, it would create an undesirable situation in which the court could affect the outcome of a case by selecting who among its members may participate," he wrote.

That's a strong argument, but it has been weakened by the past failure of justices to recuse themselves because of conflicts involving family or personal relationships, political biases and other issues.

Last year a bill was introduced in Congress that would allow the Judicial Conference, which determines standards of recusal for federal judges, to examine Supreme Court members as well and create guidelines for determining what constitutes a conflict of interest. Under the proposal, the conference could even force members to withdraw from a case if it determined a procedure for such a move.

The bill would make a good starting point for further debate. The absence of a clear recusal policy threatens to undermine the court's credibility and the public's trust.
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Title Annotation:Editorials
Publication:The Register-Guard (Eugene, OR)
Article Type:Editorial
Date:Jan 4, 2012
Words:581
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