Working Paper No. 06-51:
The Reluctant Recusants: Two Parables of Supreme Judicial Disqualification
Date Posted: 2006
It is a recurring irony of judicial recusal — a mechanism meant to reduce real and apparent bias in adjudication — that it inspires strikingly partial arguments by both its proponents and its opponents in particular cases or controversies. This partiality is driven only partly by the differences that underlie all legal disputes, differences of interpretation, opinion, expertise, and knowledge of the facts. It is also driven by direct competition for the levers of judicial power. Recusal is, after all, the only lawful way to remove an important vote from an important case — other than an impossibly speedy impeachment in the House and conviction in the Senate. This is an appealing or frightening prospect (depending on one's position) in a close case, and thus worth fighting for or against (again, depending on one's position). But voting — credibly impartial voting — is the only power a judge has, making it well worth defending. So, the stakes are high and the associated incentives are straightforward and potent. Two examples involving Supreme Court Justices and their critics illustrate the phenomenon.