[EL] Recusal Controversies
Douglas Carver
dhmcarver at gmail.com
Tue Aug 23 10:28:24 PDT 2011
A few quick thoughts on this from someone who used to be in the business of
working with judicial ethics. On the state level, recusal has heated up as
judicial speech restrictions have been struck down. (Mr. Bopp has been
instrumental in this movement.) With the increasing politicization of state
judicial races, and the increasing amounts of money being poured into them,
people are starting to look at recusal issues more closely -- as well they
should. Most, if not all, states have an ethical standard for judges to
avoid the appearance of impropriety, as even the appearance of impropriety
can (and, I can attest from my state, does) negatively affect the public's
confidence in the judiciary. The Supreme Court in Caperton acknowledged as
much.
Although there is a code of ethics for the Federal judiciary, the Supreme
Court itself does not have one, which is why the precedent at that level is
so thin. The Federal judiciary does not have much of a track record
enforcing its code of ethics -- though increasingly folks are wondering
whether more judges should recuse, particularly when they are deciding cases
involving companies in which they have substantial (often six-figure or
greater) investments -- I believe this issue was flagged when Justice Alito
was in his confirmation process.
The argument that elections of judges should be the sole/principal way to
hold judges accountable has long been the argument against having any
enforcement of judicial ethics codes. While they do represent one measure
of accountability, that cannot be the sole one -- particularly when a judge
can commit a violation and yet have years before having to face the voters.
Douglas Carver
Albuquerque, NM
On Tue, Aug 23, 2011 at 10:00 AM, Steve Klein
<stephen.klein.esq at gmail.com>wrote:
> Should Justice Prosser Have Recused Himself in Voting on the Wisconsin
> Collective Bargaining Case? <http://electionlawblog.org/?p=22146>
> Posted on August 22, 2011 10:22 am <http://electionlawblog.org/?p=22146>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> That’s one of the arguments made in this *NY Times* editorial.<http://www.nytimes.com/2011/08/20/opinion/a-study-in-judicial-dysfuntion.html?_r=1&partner=rssnyt&emc=rss>I disagree with the
> *Times* board on this issue. If we are to have judicial elections at all,
> they are so that there is some measure of accountability of judges. I think
> everyone knew that a vote for Prosser was likely a vote to uphold the law
> limiting public unions and a vote for Kloppenberg was a vote to strike it
> down.
>
> What’s the unethical conflict of interest here?
>
> --------------
>
> Open question to anyone who knows or has an opinion: has recusal always
> been so heated and, I daresay, so ridiculous?
>
> Just at the Supreme Court this year, we've had a call for retroactive
> recusal for Thomas and Scalia in *Citizens United* (they spoke at Koch
> events and Koch is the* Corporation*), a prospective call for Kagan to
> recuse in *Florida v. HHS*, *Thomas More*, et al. (when she was SG she
> sent Neal Katyal an e-mail assigning him to the case and so she "worked" on
> the case), and a prospective call for Thomas to do the same (his wife
> opposes the ACA and makes a very good living that way).
>
> And now, well, today's NYT might take the cake.
>
> The precedent seems pretty thin at the Supreme Court level. My search
> turned up Scalia's denial of a request to recuse in *Cheney v. U.S. Ct.
> for the District of Columbia* (541 U.S. 913) (well delivered, methinks),
> Rehnquist's more controversial denial in *Laird v. Tatum* (409 U.S. 824)
> (the only actual fact pattern that's given me pause), and... then it seems
> to go way back from there.
>
> Just a fad? An international communist conspiracy to sap and impurify the
> public's faith in the judiciary? Somewhere in between?
>
>
> On Tue, Aug 23, 2011 at 9:17 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
>> “AFL-CIO Boosts Clout with Super PAC”<http://electionlawblog.org/?p=22179>
>> Posted on August 23, 2011 8:14 am <http://electionlawblog.org/?p=22179>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> AP reports<http://hosted.ap.org/dynamic/stories/U/US_LABOR_SUPER_PAC?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2011-08-22-14-49-23>
>> .
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D22179&title=%E2%80%9CAFL-CIO%20Boosts%20Clout%20with%20Super%20PAC%E2%80%9D&description=>
>> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
>> Off
>> Ohio SOS Prohibits County Elections Boards from Sending Out Absentee
>> Voter Applications <http://electionlawblog.org/?p=22176>
>> Posted on August 23, 2011 8:10 am <http://electionlawblog.org/?p=22176>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> The directive is here <http://t.co/V5sCE8n> and Cuyahoga County’s
>> possible response is described here<http://blog.cleveland.com/metro/2011/08/cuyahoga_county_board_of_elect_6.html>.
>> Interestingly, the directive from SOS Husted, a Republican, cites equal
>> protection issues with some counties sending such applications but not
>> others. A stretch from *Bush v. Gore*? An application of the Sixth
>> Circuit’s recent *Hunter* opinion? The directive cites an Ohio Supreme
>> Court case on such equal protection principles.
>>
>> (H/t HHHElections.<https://twitter.com/#%21/HHHElections/status/105983560678252544>
>> )
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D22176&title=Ohio%20SOS%20Prohibits%20County%20Elections%20Boards%20from%20Sending%20Out%20Absentee%20Voter%20Applications&description=>
>> Posted in absentee ballots <http://electionlawblog.org/?cat=53>, election
>> administration <http://electionlawblog.org/?cat=18> | Comments Off
>> “Colorado redistricting plan raises eyebrows”<http://electionlawblog.org/?p=22173>
>> Posted on August 23, 2011 8:01 am <http://electionlawblog.org/?p=22173>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> Stateline.org reports<http://www.stateline.org/live/details/story?contentId=595885>
>> .
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D22173&title=%E2%80%9CColorado%20redistricting%20plan%20raises%20eyebrows%E2%80%9D&description=>
>> Posted in redistricting <http://electionlawblog.org/?cat=6> | Comments
>> Off
>> “Arizona redistricting unlikely to add 3rd congressional area along
>> border” <http://electionlawblog.org/?p=22171>
>> Posted on August 23, 2011 8:00 am <http://electionlawblog.org/?p=22171>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> The *Arizona Daily Star* reports<http://azstarnet.com/news/local/govt-and-politics/elections/article_f472ab0f-ce0f-5356-8cf3-909cfe3d6989.html>
>> .
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D22171&title=%E2%80%9CArizona%20redistricting%20unlikely%20to%20add%203rd%20congressional%20area%20along%20border%E2%80%9D&description=>
>> Posted in citizen commissions <http://electionlawblog.org/?cat=7>,
>> redistricting <http://electionlawblog.org/?cat=6> | Comments Off
>> “Citizen Group Tasked With Redistricting Dramatically Changes
>> California Map” <http://electionlawblog.org/?p=22168>
>> Posted on August 23, 2011 7:57 am <http://electionlawblog.org/?p=22168>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> Fox News reports<http://www.foxnews.com/politics/2011/08/23/citizen-group-tasked-with-redistricting-dramatically-changes-california-map/>
>> .
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D22168&title=%E2%80%9CCitizen%20Group%20Tasked%20With%20Redistricting%20Dramatically%20Changes%20California%20Map%E2%80%9D&description=>
>> Posted in citizen commissions <http://electionlawblog.org/?cat=7>,
>> redistricting <http://electionlawblog.org/?cat=6> | Comments Off
>> “Pennsylvania Secretary of Commonwealth: Photo ID Protects Integrity of
>> Every Vote” <http://electionlawblog.org/?p=22165>
>> Posted on August 23, 2011 7:55 am <http://electionlawblog.org/?p=22165>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> See this press release<http://www.prnewswire.com/news-releases/pennsylvania-secretary-of-commonwealth-photo-id-protects-integrity-of-every-vote-128242583.html>
>> .
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D22165&title=%E2%80%9CPennsylvania%20Secretary%20of%20Commonwealth%3A%20Photo%20ID%20Protects%20Integrity%20of%20Every%20Vote%E2%80%9D&description=>
>> Posted in election administration <http://electionlawblog.org/?cat=18>,
>> voter id <http://electionlawblog.org/?cat=9> | Comments Off
>> Ninth Circuit, Citing Wikipedia, Proclaims Elvis “the King” and
>> Explains the Meaning of “Elvis Has Left the Building”<http://electionlawblog.org/?p=22162>
>> Posted on August 22, 2011 4:38 pm <http://electionlawblog.org/?p=22162>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> More substantively, in Flexible Lifeline Systems v. Precision Lif<http://www.ca9.uscourts.gov/datastore/opinions/2011/08/22/10-35987.pdf>t,
>> the Ninth Circuit reverses a longstanding circuit rule presuming irreparable
>> harm in copyright infringement cases in which plaintiff seeking a
>> preliminary injunction has proven likelihood of success on the merits.
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D22162&title=Ninth%20Circuit%2C%20Citing%20Wikipedia%2C%20Proclaims%20Elvis%20%E2%80%9Cthe%20King%E2%80%9D%20and%20Explains%20the%20Meaning%20of%20%E2%80%9CElvis%20Has%20Left%20the%20Building%E2%80%9D&description=>
>> Posted in Remedies <http://electionlawblog.org/?cat=57> | Comments Off
>> Bizarre Twist in Carl Lewis Candidacy<http://electionlawblog.org/?p=22159>
>> Posted on August 22, 2011 2:51 pm <http://electionlawblog.org/?p=22159>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> Opponent State assemblyman resigns and drops out<http://www.politickernj.com/50410/ld8-delany-derailed-wifes-email-lewis>after wife sends Lewis a racist email (via Political
>> Wire<http://politicalwire.com/archives/2011/08/22/lawmaker_quits_after_wife_sent_racist_email.html>).
>> [corrected to reflect that assemblyman was not Lewis's opponent]
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D22159&title=Bizarre%20Twist%20in%20Carl%20Lewis%20Candidacy&description=>
>> Posted in campaigns <http://electionlawblog.org/?cat=59> | Comments
>> Off
>> “Will Funny Money Elect the Next President?”<http://electionlawblog.org/?p=22155>
>> Posted on August 22, 2011 1:48 pm <http://electionlawblog.org/?p=22155>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> Michael Kirkland has written this UPI colum<http://www.upi.com/Top_News/US/2011/08/21/Under-the-US-Supreme-Court-Will-funny-money-elect-the-next-president/UPI-51571313911800?dailybrief>n
>> about *Citizens United*.
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D22155&title=%E2%80%9CWill%20Funny%20Money%20Elect%20the%20Next%20President%3F%E2%80%9D&description=>
>> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
>> Off
>> *LA Times* Editorial Praises CA Redistricting Commission<http://electionlawblog.org/?p=22152>
>> Posted on August 22, 2011 12:28 pm <http://electionlawblog.org/?p=22152>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> Here<http://www.latimes.com/news/opinion/opinionla/la-ed-redistricting-20110822,0,905019.story>.
>> It concludes: “Lawsuits don’t mean the process has failed. It had some
>> holes, and there is room for improvement. But its mission has been
>> accomplished. The political parties no longer pick their voters.”
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D22152&title=%3Ci%3ELA%20Times%3C%2Fi%3E%20Editorial%20Praises%20CA%20Redistricting%20Commission&description=>
>> Posted in citizen commissions <http://electionlawblog.org/?cat=7>,
>> redistricting <http://electionlawblog.org/?cat=6> | Comments Off
>> Joshua Spivak Says a Recall of Gov. Christie Would Not Recall Lt. Gov.
>> as Well <http://electionlawblog.org/?p=22149>
>> Posted on August 22, 2011 11:10 am <http://electionlawblog.org/?p=22149>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> See here<http://recallelections.blogspot.com/2011/08/new-jersey-democrats-seriously.html>
>> .
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D22149&title=Joshua%20Spivak%20Says%20a%20Recall%20of%20Gov.%20Christie%20Would%20Not%20Recall%20Lt.%20Gov.%20as%20Well&description=>
>> Posted in recall elections <http://electionlawblog.org/?cat=11> | Comments
>> Off
>>
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D22146&title=Should%20Justice%20Prosser%20Have%20Recused%20Himself%20in%20Voting%20on%20the%20Wisconsin%20Collective%20Bargaining%20Case%3F&description=>
>> Posted in campaigns <http://electionlawblog.org/?cat=59>, conflict of
>> interest laws <http://electionlawblog.org/?cat=20>, judicial elections<http://electionlawblog.org/?cat=19>
>> | Comments Off
>> “The Republican Presidential Candidates on Voter ID”<http://electionlawblog.org/?p=22143>
>> Posted on August 22, 2011 9:57 am <http://electionlawblog.org/?p=22143>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> RNLA has the juicy quotes<http://rnla.org/Blogs/blogs/public/archive/2011/08/22/the-republican-presidential-candidates-on-voter-id.aspx>
>> .
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D22143&title=%E2%80%9CThe%20Republican%20Presidential%20Candidates%20on%20Voter%20ID%E2%80%9D&description=>
>> Posted in voter id <http://electionlawblog.org/?cat=9> | Comments Off
>> --
>> Rick Hasen
>> Professor of Law and Political Science
>> UC Irvine School of Law
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000
>> 949.824.3072 - office
>> 949.824.0495 - fax
>> rhasen at law.uci.edu
>> http://law.uci.edu/faculty/page1_r_hasen.html
>> http://electionlawblog.org
>>
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>
>
>
> --
> Steve Klein
> Staff Attorney & Research Counsel*
> Wyoming Liberty Group
> www.wyliberty.org
>
> **Licensed to practice law in Illinois. Counsel to the Wyoming Liberty
> Group pursuant to Rule 5.5(d) of the Wyoming Rules of Professional Conduct.
> *
>
>
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--
Dilexi iustitiam et odivi iniquitatem, propterea morior in exilio.
(I have loved justice and hated iniquity, therefore I die in exile.)
-- the last words of Saint Pope Gregory VII (d. 1085)
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