[Congressional Record Volume 157, Number 100 (Thursday, July 7, 2011)]
[Extensions of Remarks]
[Page E1264]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       SUPREME COURT RECUSAL PROCESS IN NEED OF TRANSPARENCY AND 
                             ACCOUNTABILITY

                                 ______
                                 

                     HON. LOUISE McINTOSH SLAUGHTER

                              of new york

                    in the house of representatives

                         Thursday, July 7, 2011

  Ms. SLAUGHTER. Mr. Speaker, I rise today to express my concern that 
justices of the Supreme Court are not required to explain their 
decisions to recuse--or not recuse themselves in a particular case 
before the Court, and that those decisions are final and unreviewable. 
Recusal decisions, left to each individual justice to make on his or 
her own and with no opportunity for review, require that each justice 
be a judge in their own case.
  Questions of impartiality erode the integrity of the Court and 
threaten to undermine public trust in our judicial system. The recusal 
process for Supreme Court justices must be reformed to provide an open 
and reviewable process.

 A Supreme Court Justice's Recusal Decisions Should Be Transparent and 
                               Reviewable

                     (By the Alliance for Justice)

       The recusal process for Supreme Court justices needs 
     transparency and accountability. Although there is a statute 
     governing recusal--28 U.S.C. Sec. 4551--that applies to 
     Supreme Court justices, the statute does not require 
     individual justices to explain their recusal decisions, and 
     those decisions are final and unreviewable. This system 
     violates the basic maxim that no one should be a judge in his 
     own case. It also ignores the fact that the standard to be 
     applied in recusal cases is the appearance of bias, which by 
     necessity depends on the views of others, and not the 
     justice's own views of his or her impartiality. Exacerbating 
     this lack of accountability is a lack of transparency, as 
     justices are not required to issue a written opinion 
     explaining a recusal decision.
       That's why over 100 law professors recently sent a letter 
     calling on Congress to hold hearings and implement 
     legislation to increase the transparency and accountability 
     of recusal decisions.
       A recent Supreme Court case, Caperton v. A.T. Massey Coal, 
     Inc. provides an object lesson in the hazards of a self-
     policing judiciary, in which individual judges determine 
     whether or not their impartiality can reasonably be 
     questioned. In Caperton, West Virginia Justice Brent D. 
     Benjamin received substantial campaign contributions made 
     directly or indirectly from the president of a company with 
     an outstanding $50 million judgment against it on appeal 
     before the judge. Justice Benjamin denied three motions to 
     recuse himself, and then voted in the 3-2 majority to reverse 
     the judgment against the company. A public opinion poll 
     indicated that 67% of West Virginians doubted Justice 
     Benjamin would be fair and impartial.
       The Supreme Court reversed Justice Benjamin's decisions not 
     to recuse himself on the basis that the risk of actual bias 
     was so high that it violated petitioners' constitutional due 
     process rights. It did not matter what Justice Benjamin 
     thought of his own potential for bias, the key was whether 
     the appearance of impartiality was compromised, the Court 
     held. The Court emphasized the need for an objective test to 
     evaluate whether an interest rises to such a degree that the 
     average judge might become biased, rather than relying on a 
     judge's self-evaluation of actual bias. ``The difficulties of 
     inquiring into actual bias and the fact that the inquiry is 
     often a private one, simply underscore the need for objective 
     rules,'' the Court added. The Court held that the need for an 
     independent inquiry is particularly important ``where, as 
     here, there is no procedure for judicial factfinding and the 
     sole trier of fact is the one accused of bias.''
       The opacity and lack of accountability of the recusal 
     process erodes public confidence in the integrity of the 
     Court and the sense that justice is being administered 
     fairly. For example:
       In 2003, a prominent legal ethicist argued that Justice 
     Breyer should have recused from Pharmaceutical Research and 
     Manufacturers of America v. Walsh, in which an association of 
     drug manufacturers, including three in which Justice Breyer 
     held stock, brought suit challenging the constitutionality of 
     state regulations aimed at keeping drug costs down for 
     consumers. Justice Breyer chose not to recuse himself, 
     despite his potential financial conflict of interest.
       In 2004, just weeks after the Supreme Court granted 
     certiorari in a public records case brought by the Sierra 
     Club against then-Vice President Dick Cheney, Justice Scalia 
     went duck hunting with Cheney and accepted a free ride on the 
     Vice President's plane. Despite widespread public criticism 
     questioning his appearance of bias in the case, Justice 
     Scalia refused to recuse himself. In a memorandum opinion 
     denying the Sierra Club's motion to recuse, Justice Scalia 
     wrote that he ``would have been pleased to demonstrate [his] 
     integrity'' by disqualifying himself from the case, but 
     nonetheless decided there was no basis for recusal. He then 
     cast his vote in support of Vice President Cheney's position.
       This year, the advocacy organization Common Cause filed a 
     petition with the Department of Justice, requesting that it 
     file a Rule 60(b) motion seeking the invalidation of last 
     year's Citizens United v. FEC ruling on the basis that 
     Justices Scalia and Thomas should have recused themselves. 
     The petition alleged the impartiality of both justices could 
     reasonably be questioned under 18 U.S.C. Sec. 455(a) due to 
     their alleged attendance at a closed-door retreat hosted by 
     Koch Industries, a politically active corporation that 
     supported and has benefited from Citizen United's dismantling 
     of campaign finance laws. Common Cause also alleges that 
     Justice Thomas had an obligation to recuse himself under 18 
     U.S.C. Sec. 455(b), due to a financial conflict of interest 
     created by his wife's employment at a conservative political 
     organization that stood to benefit from unrestricted 
     corporate donations made possible by Citizens United.
       Also this year, Representative Anthony Weiner (D-NY) and 73 
     other members of the House of Representatives have asked 
     Justice Thomas to recuse himself from any upcoming review of 
     the Affordable Care Act due to his wife's ties to 
     organizations lobbying to repeal the Act. Rep. Weiner asserts 
     that IRS records show that between 2003 and 2007, Virginia 
     (``Ginni'') Thomas was paid $686,589 by the conservative 
     Heritage Foundation, which at the time opposed health care 
     reform. He adds that in 2009, Ms. Thomas became the CEO of a 
     nonprofit, Liberty Central, which also opposed health care 
     reform, and that earlier this year, Ms. Thomas announced that 
     she had formed a lobbying firm, ``Liberty Consulting,'' to 
     advance various Tea Party legislative initiatives, including 
     the repeal or nullification of the Affordable Care Act. Rep. 
     Weiner alleges that these connections give rise to an 
     appearance of partiality, and a potential financial conflict 
     of interest that require Justice Thomas to recuse himself, if 
     the Affordable Care Act reaches the Court. While a judge's 
     spouse is not prohibited from engaging in political 
     activities, Judicial Conference Advisory Opinions 
     interpreting the Code of Conduct make clear that a spouse's 
     political activities may increase the likelihood that a judge 
     must recuse from a particular case.
       These examples highlight the need for transparency and 
     review of recusal issues that arise for Supreme Court 
     justices. The impartiality of specific justices, and thereby 
     the integrity of the Court, has come under question because 
     the recusal statute fails to provide an open and reviewable 
     process. This needs to change, either through Congressional 
     legislation, or by the Court itself adopting new recusal 
     policies.

                          ____________________