Non-Recusal Non-Issue

Michael Kranish of the Boston Globe has a story on yet another alleged failure of Judge Alito to recuse himself from a case due to a conflict of interest. According to the Globe, Alito was listed as “present” in 1992 on an order denying a petition for en banc review in an appeal from a case, Kopp, in which he participated as U.S. Attorney in 1987. For anyone who knows absolutely anything about federal appellate procedure, this is a complete non-issue.

Under both the Federal Rules of Appellate Procedure and the Third Circuit’s own rules (available here), there is no requirement that a vote be held in response to a petition for en banc review. Under Third Circuit Rule 9.5.4, if no sitting judge requests a response to or a vote on the petition within ten days of its filing, the petition is automatically denied. When a decision is unanimous, as this one was, it is rare that a judge will ask for a vote, so there was nothing in which Alito could really have participated. Thus, that Alito was listed as present in no way suggests that he actually participated in considering whether to rehear it. In addition, given that rehearing en banc requires the affirmative vote of all sitting members of the court, recusal from an en banc vote is the exact same as a vote against rehearing. (For example, if there are nin judges on the court, and two recuse, five votes are requires simply to rehear the case.) In sum, there is no evidence whatsoever that Alito did anything improper in this case.

As a final matter, the Globe runs the story under the headline, “Alito’s Policy on Recusals Is Questioned,” yet fails to note anyone who is questioning Alito on this point other than Senator Kennedy — and the article only reports that Kennedy is asking questions about Alito’s failure to recuse in cases involving Vanguard (another non-issue). Moreover, there is no question about Alito’s “policy” here as it is undisputed that Alito included the Kopp case in a list of matters from which the clerk’s office should recuse him as a judge. In other words, this is a complete non-story.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

Most Popular

Politics & Policy

Students’ Anti-Gun Views

Are children innocents or are they leaders? Are teenagers fully autonomous decision-makers, or are they lumps of mental clay, still being molded by unfolding brain development? The Left seems to have a particularly hard time deciding these days. Take, for example, the high-school students from Parkland, ... Read More
PC Culture

Kill Chic

We live in a society in which gratuitous violence is the trademark of video games, movies, and popular music. Kill this, shoot that in repugnant detail becomes a race to the visual and spoken bottom. We have gone from Sam Peckinpah’s realistic portrayal of violent death to a gory ritual of metal ripping ... Read More
Elections

Romney Is a Misfit for America

Mitt’s back. The former governor of Massachusetts and occasional native son of Michigan has a new persona: Mr. Utah. He’s going to bring Utah conservatism to the whole Republican party and to the country at large. Wholesome, efficient, industrious, faithful. “Utah has a lot to teach the politicians in ... Read More
Law & the Courts

What the Second Amendment Means Today

The horrifying school massacre in Parkland, Fla., has prompted another national debate about guns. Unfortunately, it seems that these conversations are never terribly constructive — they are too often dominated by screeching extremists on both sides of the aisle and armchair pundits who offer sweeping opinions ... Read More
U.S.

Fire the FBI Chief

American government is supposed to look and sound like George Washington. What it actually looks and sounds like is Henry Hill from Goodfellas: bad suit, hand out, intoning the eternal mantra: “F*** you, pay me.” American government mostly works by interposition, standing between us, the free people at ... Read More
Film & TV

Black Panther’s Circle of Hype

The Marvel Cinematic Universe (MCU) first infantilizes its audience, then banalizes it, and, finally, controls it through marketing. This commercial strategy, geared toward adolescents of all ages, resembles the Democratic party’s political manipulation of black Americans, targeting that audience through its ... Read More