Editorial
A Way Forward on Judicial Ethics
Published: March 11, 2012
Last Tuesday, an alliance of government watchdog groups delivered 100,000 signatures to the Supreme Court along with a letter from hundreds of law professors calling on the justices to voluntarily adopt the code of conduct that applies to all other federal judges and to reform how they handle requests for recusals.
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Chief Justice Defends Peers’ Hearing Case on Health Law (January 1, 2012)
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Editorial: The Supreme Court’s Recusal Problem (December 1, 2011)
A federal appeals court ruling the next day on the case of a federal trial judge illustrates why recusal over a conflict of interest cannot be left solely to the judge involved and needs to be reviewed by other jurists. Yet the Supreme Court operates with no such mechanism, which is critical to preserving confidence in the court’s integrity.
Judge Loren Smith, applying a federal statute, had awarded four oil companies $87.3 million from the federal government in October 2009 to reimburse them for their costs in cleaning up hazardous waste from World War II. A few weeks later, he told the parties he realized his wife owned 98 shares of stock in Chevron, the parent company of Texaco and Union Oil, two companies in the lawsuit.
The government filed a motion to require that Judge Smith recuse himself from the case under the Code of Conduct for United States Judges, which applies to all federal judges except the Supreme Court justices. He acknowledged the conflict of interest about Texaco and Union Oil and asked that their claims be assigned to another judge. But he said he would retain control over the judgment for the other two companies in the case, Shell and Arco.
The government appealed his partial recusal decision, and the appeals court agreed, saying that the code of conduct required the judge to disqualify himself from the entire proceeding as soon as he discovered the conflict. Though he may have acted with proper intentions, the court said his decision contradicted the mandate of the code to remove himself from “any proceeding in which his impartiality might reasonably be questioned.”
The Supreme Court, not bound by the code, leaves recusal decisions to each justice. The justices almost never explain how they handle requests for recusal. And if a justice reasoned incorrectly on a recusal request, there would be no independent review.
Without limiting its independence, the court could adopt a sensible recusal process like one proposed by Stephen Gillers, the legal ethics expert. Any recusal motion would be sent to both the justice involved and to the chief justice (or the senior associate justice if the motion concerned the chief justice); if the justice decided not to recuse, the reviewing justice would consider whether the motion had merit and, if so, he would refer it to the full court (minus the justice at issue) for a ruling, with recusal requiring a majority. Any decision by the full court, to recuse or not, would require a written opinion.