As justifiable anger has erupted over the GOP rush to confirm radically right wing and, in my view, intellectual and academic mediocrities to the federal courts, I started musing about recusal.
I know that recusal is entirely a personal choice for Supreme Court justices. I remember that Kagan recused herself on a few cases she was involved in when she was Solicitor General but I believe that was her decision.
Whether any effective pressure can be applied behind the scenes by the other justices, I don’t know. I’d imagine Roberts could wander into someone’s chambers and murmur a suggestion but I’d think the decision would still be up to the individual justice.
But I’ve been fairly sure a party appearing before the Court can’t ask, say, Kavanaugh to recuse himself from deliberations on a sexual harassment case. If one should show up on the Court docket.
I was wrong — although it has nothing to do with sexual harassment.
At CNBC, Tucker Higgins reports that “[s]everal progressive organizations demanded Tuesday that Justice Brett Kavanaugh recuse himself from an upcoming Supreme Court case over the constitutionality of the Consumer Financial Protection Bureau, the post-crisis financial regulator, because he declared the bureau’s structure unconstitutional while he was a federal appeals court judge in Washington.”
I read this and said to myself, “Hm.” Followed by another, “Hm,” at this, focusing on that same case and others:
Fix the Court offers a midterm report on the justices’ recusals, suggesting that the report’s findings “cast some doubt on the justices’ impartiality in certain areas and may foreshadow future ethics concerns.”
But what about the lower federal courts? The district courts have a total of 677 or 678 (different numbers from different sources) judges; 112 of them were planted by Trump-McConnell. The next federal court level, the appellate or circuit courts, have 179 judges, 44 of which were shoveled in by Trump-McConnell.
I envision (or imagine) all kinds of stuff happening in the immediate future. For one thing, recusal demands and battles up the wazoo, and a new aggressive system created by progressive lawyers to prosecute recusal demands.
I’d think a majority of federal judges, rightly and judiciously proud of their own CVs, academic backgrounds and record of decisions, must be appalled at what could be, in effect, a degradation of their courts with this infusion of prejudiced know-nothings produced by an aberrant administration. How will the chief judges of each court handle these people?
Within chambers, too, how will Trump judges (and let’s do the asterisk thing with them)* be treated and advised by colleagues who were not brought up, so to speak, sealed within an extreme dogma which was invented as a resistance to actual constitutional scholarship? It’s as if a group of neurological surgeons find themselves in the O.R. with assistants who have just graduated from a Christian Science med school.
A bad and/or dumb decision from a Trump judge* — especially if he/she failed to recuse in face of a demand — would be appealed. At least once. And a variety of things could happen in an appeal.
As for the final appeal — to the Supreme Court — SCOTUS accepts only 1 percent of such cases. And a few more of the recent lousy decisions out of Roberts’ court and I sense something like SCOTUS nullification will be born, although I don’t know what the baby will look like. Still, if SCOTUS wants to take on Roe…I suspect we’ll all find out.
And then there’s the intangible — how some judges, put on benches for political reasons, find themselves shifting away from politics, raised into integrity by their newly elevated positions on the bench.
It seems to me there are many aspects of the federal judiciary that serve to dilute the power and political leans of individual judges. Even Trump judges.*
So, despite the fears about Trump judges** damaging our laws for generations, I am somewhat optimistic it won’t happen that way and, if it does happen, a whole new body of laws will emerge from an empowered legislature. Which is where all bad SCOTUS decisions go to die.