U.S. SC chief justice addresses recusal issue

Jessica M. Karmasek Jan. 10, 2012, 2:41am




WASHINGTON (Legal Newsline) - U.S. Supreme Court Chief Justice John Roberts, in his annual report, brushes off calls for fellow Justices Elena Kagan and Clarence Thomas to recuse themselves from the challenge to President Barack Obama's federal health care law.

Roberts released his 16-page report Saturday. It is his seventh since he was appointed as the nation's top justice in September 2005.

The chief justice uses most of his report to address the issue of judicial recusal, in hopes of dispelling "some common misconceptions."

Though Roberts does not cite specific cases or names, he could be addressing partisan urgings that Kagan and Thomas not hear the health care lawsuit.

Fourteen states, later joined by 12 others, filed a challenge to the law in March 2010. The 26 states contend that its individual mandate requiring that all Americans purchase health insurance or face a $695 penalty every year is unconstitutional.

The states filed a petition in September to have their challenge heard immediately by the U.S. Supreme Court.

The nation's high court agreed in November to take the case. It will hear oral arguments on the four issues involved in the challenge to the law over three days in March.

For months, various groups have pressured the two justices to recuse themselves from the case, or at least explain why they refuse to do so.

They argue that Kagan, as solicitor general for Obama, was directly involved in the defense of the health care law.

As for Thomas, some House Democrats have pleaded with him not to sit on the case because of his wife's heavy opposition to the law.

Virginia Thomas, an attorney, founded the conservative advocacy group Liberty Central in 2009. She also is affiliated with the Tea Party, one of the groups opposing Obama's health reform.

"Congress has directed that federal judicial officers must disqualify themselves from hearing cases in specified circumstances. As in the case of financial reporting and gift requirements, the limits of Congress's power to require recusal have never been tested," Roberts wrote in his report.

"The Justices follow the same general principles respecting recusal as other federal judges, but the application of those principles can differ due to the unique circumstances of the Supreme Court."

The governing statute, which is set out in Title 28, Section 455 of the U.S. Code, states, as a general principle, that a judge shall recuse in any case in which the judge's impartiality might reasonably be questioned.

"Like lower court judges, the individual Justices decide for themselves whether recusal is warranted under Section 455," Roberts wrote. "They may consider recusal in response to a request from a party in a pending case, or on their own initiative. They may also examine precedent and scholarly publications, seek advice from the Court's Legal Office, consult colleagues, and even seek counsel from the Committee on Codes of Conduct.

"There is only one major difference in the recusal process: There is no higher court to review a Justice's decision not to recuse in a particular case. This is a consequence of the Constitution's command that there be only 'one supreme Court.' The Justices serve on the Nation's court of last resort."

As in the case of the lower courts, the Supreme Court does not sit in judgment of one of its own members' decision whether to recuse in the course of deciding a case, the chief justice explained.

"Indeed, if the Supreme Court reviewed those decisions, it would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its members may participate," he wrote.

And although a justice's process for considering recusal is similar to that of the lower court judges, the justice must consider an "important factor" that is not present in the lower courts, Roberts said.

"Lower court judges can freely substitute for one another. If an appeals court or district court judge withdraws from a case, there is another federal judge who can serve in that recused judge's place," he wrote.

"But the Supreme Court consists of nine Members who always sit together, and if a Justice withdraws from a case, the Court must sit without its full membership. A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each Justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case."

Justices and lower federal court judges contemplating recusal should look to the principles set forth in Canon 14 of the original 1924 Canons of Judicial Ethics, the chief justice said. That canon addresses judicial independence.

"It provides that a judge 'should not be swayed by partisan demands, public clamor or considerations of personal popularity or notoriety, nor be apprehensive of unjust criticism.' Such concerns have no role to play in deciding a question of recusal," he wrote.

Roberts said he has "complete confidence" in his fellow justices' ability to determine when recusal is warranted.

"They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties," he wrote.

"We are all deeply committed to the common interest in preserving the Court's vital role as an impartial tribunal governed by the rule of law."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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