Monday, November 02, 2009

Judge-Shopping or Necessary Clarification?

Congress Set to Take Aim at Judicial Recusals

Congress is preparing to wade into one of the most sensitive of issues for the federal judiciary: when a judge should step aside in a case and who should make that decision.

The House Judiciary Committee, led by Rep. John Conyers, D-Mich., is planning a hearing on federal recusal guidelines amid controversies that have swept through state court systems in recent years, culminating in a U.S. Supreme Court decision five months ago that tightened the recusal requirements for elected state judges.

The Judiciary Committee's interest marks the first time Congress has flirted with recusal guidelines since a high-profile scrap in 2004 between congressional Democrats and Justice Antonin Scalia. In a debate that broke along partisan lines, Democrats said that Scalia should have recused in a case involving then-Vice President Dick Cheney because he and Cheney were part of a group that went duck hunting in Louisiana while the case was pending. Nonprofits seeking records from Cheney's energy task force eventually lost, 7-2.

The gist of the argument is that belonging to an organization and attending the events where you might be socializing with potential plaintiffs is grounds for recusal. You have to wonder how far this sort of argument could be taken and how Republicans could best use it to eliminate liberal judges from cases.