If you followed the controversy over what the recusal rules should be for the Michigan Supreme Court, you will remember that opponents of proposed changes pointed to the similarities between the way in which the Michigan court and the U.S. Supreme Court handled recusal questions as a reason to stick to the status quo. Before the Court changed the rules, Michigan Supreme Court justices' decisions about whether to recuse themselves were not subject to review and did not have to be in writing. Last week, in an effort coordinated by the liberal Alliance for Justice, 107 law professors signed a letter to the chairs and ranking minority members of the House and Senate Judiciary committees calling for change in the way the U.S. Supreme Court handles issues related to disqualification:
Justices of the United States Supreme Court have not adopted and are not subject to a comprehensive code of judicial ethics. Nor are denials of motions to recuse by individual justices required to be in writing or subject to review. Recent media reports have focused public attention on this situation. The purpose of this letter is to issue a nonpartisan call for the implementation of mandatory and enforceable rules to protect the integrity of the Supreme Court.
Here's the letter. (PDF)
As was the case in Michigan, U.S. Supreme Court justices are not covered by the code of conduct that lower federal court judges must follow. The professors said that should change:
Adherence to mandatory ethical rules by justices, and requiring transparent, reviewable recusal decisions that do not turn solely on the silent opinion of the challenged justice will reinforce the integrity and legitimacy of the Supreme Court.
The signers include some leading names in legal and judicial ethics, but notably do not include Stephen Gillers of New York University School of Law, a prominent legal ethics expert. BLT reported that when asked about the letter, Gillers said he agreed with most of it, but parted ways with the group over the recusal issue. Requiring justices to submit their recusal decisions for review by other justices, he said, could lead to "the appearance of opportunistic behavior" aimed at keeping a colleague on or off the case, and could spoil the Court's collegiality. Citing the current "highly politicized" debate over justices' ethics, Gillers also said he would rather that hearings and legislation take place "in a more neutral time."
The sole Michigan signer was Prof. Lawrence Dubin of the University of Detroit Mercy School of Law.
