Musing About Recusing

Not that the Supreme Court justices are bound by this, but let?s look once again at the standard described in the Judicial Code of Conduct?the rules that bar a sitting federal judge from conduct that gives the appearance of impropriety. Now ?appearance of impropriety? is a very, very low standard (although it?s not so low that merely imagining impropriety would suffice). The appearance-based standard means that federal judges should not do anything to suggest to the public that they are in the tank for one side or another. But the ethics rules don?t contemplate that having worked for the Obama administration constitutes a conflict. Many justices have worked for many presidents and on many cases. To be sure, Kagan would have to step aside if she had, while in government service, worked on strategies and tactics on health care. (That is precisely why she recused herself in so many cases on other issues, which amounted to more than one-quarter of the cases heard, last term.) In cases in which she was actively involved in setting policy and strategy Kagan stepped aside. In cases in which she went out of her way to be uninvolved, she hasn?t. But the suggestion here seems to be that Kagan is compromised not for the work she did, but for the office she held?and that is a standard that does not exist in the ethics rules.

Source: http://feeds.slate.com/click.phdo?i=36224e89c4a0dd78a1bedeee26a7c6ff

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