Non-Recusal Correction

by Jonathan H. Adler

A helpful reader points out a small error in my post below. Under current Third Circuit rules adopted in 2002, a recusal is not tantamount to a vote against en banc rehearing because recused judges do not count as active judges. I regret the error, but the point of my prior post still stands: There is no evidence that Judge Alito did anything improper in this case. Indeed, I have yet to see any evidence that Judge Alito has done anything improper in failing to recuse in any of the cases cited by his opponents.