25 January 2006


OK, now I think I have the technical glitch fixed, and I'll repost the last several days' worth of stuff over the next few days.

In any event, there's an interesting article on judicial recusal abstracted over at Larry Solum's Legal Theory Blawg.

The laws governing judicial recusal are failing to protect the reputation of the judiciary, as was illustrated by the recent controversy surrounding Justice Scalia's refusal to recuse himself from Cheney v. United States District Court for the District of Columbia. The history of recusal law reveals that each time Congress amends the recusal statutes to expand their scope, judges interpret the legal standards narrowly to avoid disqualification. This article contends that the recusal statutes are ineffective not because the substantive standards for recusal are too limited, but rather because the recusal process operates outside of the traditional adjudicatory model.

"Frost on Judicial Recusal" (25 Jan 2006) (quoting abstract). There is a much, much simpler solution to this problem than complicated rules that lead only to more satellite litigation. It's a solution already familiar to some of us with executive-branch experience: The rule to be followed by military officers. Although there are several ways to state the rule, it's very simple:

The appearance of a conflict of interest is a conflict of interest until a disinterested party has performed an adequate investigation and determined that no conflict actually exists.

Simple. Neat. Meets the apparent objections raised in Frost's article. But… this requires Congress to fill all open judgeships, and probably fund a not-insignificant number of additional judgeships, to allow for the delays during those investigations. And there's the rub: We'd have a body that is essentially built upon conflicts of interest working much harder than it does now to fill tenured seats for the purpose of avoiding conflicts of interest. Somehow, I don't think that's going to happen.