Re: Kaplan's Opinion [Was: Space-Shifting]

From: Bryan Taylor <bryan_w_taylor[_at_]yahoo.com>
Date: Wed, 25 Oct 2000 20:15:36 -0700 (PDT)

• John Noble <jnoble[_at_]dgsys.com> wrote:
  > At 4:34 AM -0400 10/21/00, Bryan Taylor wrote:
  > >I do question Chief Justice Rehnquist's
  > >decision not to recuse himself if the Microsoft case (his son did MS
  > >antitrust work).
  >
  > If Rehnquist wanted to benefit his son he would establish a precedent
  > of recusing himself from every case in which his son has
  > represented one of the parties. Litigants nationwide, from the
  > ACLU to NOW would flock to the firm to bar Dad's participation
  > in considering their appeals. Junior would get rich beyond
  > his imagination. And self-appointed monitors of judicial
  > ethics would all applaud.
  

Why does the word "sham" come to mind? This is not the scenario, but if it were I would expect the non-liberal side to have no objection to the judge remaining and I wouldn't credit "we hired your son so you should recuse yourself".  

> The decision to remand US v. Microsoft to the Court of Appeals was
> 8-1. Without the Chief Justice it would have been 7-1. The
> reason appeals are heard by 3-member panels in the Court of
> Appeals, and by nine in the Supreme Court, is so that no one judge
> can decide the case.

I believe Rehnquist said (or at least implied) he would not recuse himself if the case came back. If a single judge is so unimportant, then recusal would be no big deal.

> Do you really think -- do you think anyone really thinks -- that
> Rehnquist would abandon his judicial philosophy to toss a bone
> to junior.

That sort of analysis is irrelevant. The decision should be based purely on the law. 28 US 455(b)(5)(ii,iii) are the relevant clauses. Part (iii) is especially troubling here because I can't square Rehnquist's decision with it.

There are two changes that I would make to the way recusals are handled.

First, I think it is wrong for a judge to decide to deny their own recusal if a party raises it. Rather the court above should decide it. If it is a Supreme Court case, then Congress should vote.

Second, a replacement should be appointed so that you don't get ties. Perhaps each judge can pick their own standing back-up, so there is little incentive to go after recusal per your scenario above.

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Yahoo! Messenger - Talk while you surf! It's FREE. http://im.yahoo.com/ Received on Thu Oct 26 2000 - 03:30:49 GMT