So many folks are racing to criticize the Supreme Court’s new Code of Conduct that I won’t try to explore all the criticisms. Given his stature as one of the leading liberal academics of the day, I will focus on Berkeley law dean Erwin Chemerinsky’s piece in the Los Angeles Times.
Chemerinsky’s objection is straightforward (and commonplace among the critics): The Court’s new Code, he says, “is seriously flawed in that it includes no enforcement mechanism” and “[i]nstead … continues to leave it to each justice to decide whether to be recused in a particular case.”
Chemerinsky’s piece is rife with confusion:
1. The ill-informed reader would infer from his piece that decisions by lower-court judges not to recuse are routinely subject to searching review. But the practical reality is that lower-court judges receive a very high degree of virtually complete deference on their decisions not to recuse.
Yes, there is a mechanism available for review, at least for federal district judges: A federal statute provides that when a party “makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, … another judge shall be assigned” to decide whether recusal is warranted. For federal appellate judges, I gather that a party could ask the entire court of appeals or the Supreme Court to review a federal appellate judge’s decision not to recuse. [Update (3:50 p.m.): Motions to recuse are also available under the general recusal statute, 28 U.S.C. 455, and denial of a motion to recuse is reviewable under a deferential “abuse of discretion” standard of review.]
But how many times this century has a non-recusal been reversed? (The last one that I’m aware of was more than 40 years ago.) [Update: A reader has called to my attention a recent reversal, so I’ve struck through the preceding sentence.]
Well, you might say, at least the complaint process for judicial misconduct provides a means to deter or punish wrongful non-recusal. Not so! The rules that govern misconduct complaints expressly forbid complaints about a judge’s non-recusal: “Cognizable misconduct does not include an allegation that calls into question the correctness of a judge’s ruling, including a failure to recuse.” So you have no recourse against even flagrant non-recusals (such as the appellate judge who declined to recuse himself from a case in which the group his wife led had filed amicus briefs in the district court and in which his wife had publicly celebrated the very ruling under review).
2. Chemerinsky asserts that there are “many different approaches” by which the Court could provide a mechanism to enforce a justice’s duty to recuse. He sets forth two. But his first is patently unconstitutional, and he won’t even embrace his second.
On the first, Chemerinsky writes:
My colleague Jeremy Fogel, a former federal judge, proposed to the Senate Judiciary Committee in May that the chief justice appoint three retired federal court of appeals judges to decide recusal issues. There are many superb retired judges who could be appointed to perform this function.
For starters, Chemerinsky badly misstates Fogel’s proposal. Here’s what Fogel stated in his testimony to the Senate Judiciary Committee in May:
Because of its unique position in the judicial branch and the need to avoid a review procedure that might compromise its decisional independence or the security of its members, the Court could designate a panel of retired judges with deep experience and unquestioned integrity to provide it with confidential advice as to whether an act, omission or relationship raises an issue under the code.
There is a massive difference between enlisting the “confidential advice” of a panel of retired judges and authorizing such a panel to “decide recusal issues.”
How would it possibly be constitutional to delegate to a panel of “retired” judges—i.e., individuals no longer holding the judicial office—the authority to decide whether or not a justice takes part in a particular case? Chemerinsky evidently doesn’t even recognize the issue, much less suggest an answer to it.
Chemerinsky’s second alternative is “to have recusal issues for a justice decided by the eight other justices.” But he immediately raises the “danger” that “the justices might develop a norm of deferring to one another and refusing to meaningfully enforce the code of conduct.” Given the current composition of the Court, I wonder if Chemerinsky and others on the Left would really prefer a process in which five conservative justices would refuse to accord deference to, say, Justice Kagan if she concludes that she is not obligated to recuse.
3. Chemerinsky alleges that until the issuance of the new Code of Conduct on Monday, the Supreme Court justices, unlike every other judge in the country, were not “bound by an ethics code.” His allegation is wrong in two large respects. First, the federal statute that governs recusal applies to Supreme Court justices as well as lower-court judges. Second, far from being “binding” on lower-court judges in any strong sense of that term, the Code of Conduct for lower-court judges says only that it “is designed to provide guidance to judges.” It acknowledges that many of its provisions “are necessarily cast in general terms, and judges may reasonably differ in their interpretation.”
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Too many critics of the Court’s new Code of Conduct are ill-informed about judicial ethics generally and haven’t given serious thought to what sort of enforcement mechanism is actually possible.