Photo Credit: Rory Murray O/C
Recusal occurs when a judge is
removed from hearing a case. Almost always, the judge voluntarily recuses
himself/herself. Justice Elena Kagan has recused herself several times because
she worked for the Obama administration as their lawyer who took cases to the
Supreme Court. For example, as recently as last year, she recused herself in an
immigration detention case because she approved a court filing earlier in the
process.
Can a judge be forced into recusal?
Yes, but it’s extremely rare.
The U.S. Supreme Court ruled that a West Virginia Supreme Court justice improperly remained on a case when he was asked to recuse himself.
The justice in question received a $3 million direct election campaign donation from a business owner who had lost a $50 case in a trial. That justice cast the deciding vote that vacated the $50 million judgment. (That’s a nice return on a $3 million investment.)
The U.S. Supreme Court ruled that a West Virginia Supreme Court justice improperly remained on a case when he was asked to recuse himself.
The justice in question received a $3 million direct election campaign donation from a business owner who had lost a $50 case in a trial. That justice cast the deciding vote that vacated the $50 million judgment. (That’s a nice return on a $3 million investment.)
The U.S. Supreme Court said that the
plaintiff’s due process rights were violated. But its ruling is very narrow—
recusal must happen only when “extreme facts” create a “probability of bias.”
Are we seeing “extreme facts” in the
Kavanaugh case? Legally speaking, this is doubtful.
First, the party seeking recusal must be able to show a direct injury.
If Kavanaugh is confirmed and “Trump cases” come before the Court, he should follow Elena Kagan’s example.
But there is no requirement. The Democratic Party or a particular U.S. citizen would not have standing to win a recusal motion. In other words, they are unlike the businessman who lost a $50 million judgment because someone paid to put a justice on the West Virginia Supreme Court.
First, the party seeking recusal must be able to show a direct injury.
If Kavanaugh is confirmed and “Trump cases” come before the Court, he should follow Elena Kagan’s example.
But there is no requirement. The Democratic Party or a particular U.S. citizen would not have standing to win a recusal motion. In other words, they are unlike the businessman who lost a $50 million judgment because someone paid to put a justice on the West Virginia Supreme Court.
What does this ultimately mean?
Justice Kagan’s self-restraint— which most people don’t know about— has helped
to maintain the public’s respect for the Supreme Court. If Justice Kavanaugh
failed to recuse himself in similar situations, the Court’s rulings would be
even more controversial—and the legitimacy of the Supreme Court would suffer.
No comments:
Post a Comment