[Congressional Record Volume 156, Number 133 (Wednesday, September 29, 2010)]
[Senate]
[Pages S7792-S7793]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY:
  S. 3871. A bill to amend chapter 13 of title 28, United States Code, 
to authorize the designation and assignment of retired justices of the 
Supreme Court to particular cases in which an active justice is 
recused; to the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, today, I am introducing legislation to 
ensure that the Nation's highest court can serve its function as the 
court of last

[[Page S7793]]

resort in our judicial system. The Supreme Court's effectiveness is 
compromised when it does not have a full slate of nine justices sitting 
in a given case. When a Justice needs to recuse from a matter under the 
rules that govern judicial conflicts of interest, the Supreme Court may 
be rendered ineffective, because there are no provisions in place to 
allow another to be designated to sit in his or her place. Given the 
Court's recent rash of 5:4 rulings, the absence of one Justice could 
result in a 4:4 decision. In that scenario, the Supreme Court cannot 
serve its function and the lower court decision stands. This was a very 
real concern for Chief Justice William Rehnquist. He explained that 
such a stalemate on the Court where there were conflicting rulings in 
the lower courts, ``would lay down `one rule in Athens, and another 
rule in Rome' with a vengeance.''
  Under the existing statute, retired Justices may be designated to sit 
on any court in the land except the one to which they were confirmed. 
The bill I am introducing today will ensure that the Supreme Court can 
continue to serve its essential function. I hope that it will encourage 
Justices to recuse themselves when they have a financial conflict of 
interest or their participation would create the appearance of 
impropriety. In recent history, Justices have refused to recuse 
themselves and one of their justifications has been that the Supreme 
Court is unlike lower courts because no other judge can serve in their 
place when Justices recuse.
  When I met with Justice John Paul Stevens earlier in the year before 
he announced his retirement, he suggested exploring legislation that 
would allow retired U.S. Supreme Court Justices to sit by designation 
on all of our federal courts. Currently, Justices Stevens, Sandra Day 
O'Connor and David Souter may sit by designation on any Federal court 
except the U.S. Supreme Court, the Court to which they were confirmed. 
This defies common sense.
  Recent news about conflicts of interest has raised serious questions 
in the minds of Americans about the impartiality of the judiciary. 
These serious concerns only serve to undermine the public trust in our 
Nation's courts. Allowing retired Justices to sit on the Supreme Court 
would encourage sitting justices to recuse themselves when there is 
even an appearance of a conflict of interest regarding a case before 
the Court. Such a designation would also help to avoid the potential of 
4:4 splits which concerned Chief Justice Rehnquist. I am confident the 
American people want the Supreme Court to serve as the final word in 
our federal judicial system. I encourage my fellow Senators to consider 
the legislation I am introducing today as a common-sense solution to 
preserve the role that the Supreme Court plays in our democracy.
  Mr. President, I ask by unanimous consent that the text of the bill 
be printed in the Record.
  There being no objetion, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3871

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. DESIGNATION AND ASSIGNMENT OF RETIRED SUPREME 
                   COURT JUSTICES.

       Section 294 of title 28, United States Code, is amended--
       (1) in subsection (a), by inserting ``(1)'' after ``(a)'';
       (2) by adding at the end the following:
       ``(2) Any retired Chief Justice of the United States or any 
     retired Associate Justice of the Supreme Court may be 
     designated and assigned to serve as a justice on the Supreme 
     Court of the United States in a particular case if--
       ``(A) any active justice is recused from that case; and
       ``(B) a majority of active justices vote to designate and 
     assign that retired Chief Justice or Associate Justice.''; 
     and
       (3) in subsection (d), by striking ``No such designation or 
     assignment shall be made to the Supreme Court.'' and 
     inserting ``Except as provided under subsection (a)(2), no 
     designation or assignment under this section shall be made to 
     the Supreme Court.''.
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