AP reports that Chief Justice Rehnquist gave short shrift to the Leahy-Lieberman request for information about the Supreme Court's “canons, procedures and rules” on whether justices should recuse themselves from cases in which “their impartiality might reasonably be questioned.” The Chief Justice's letter is not at the Court's web site, indeed the most recent press release is dated Oct. 2, 2003.
According to AP, Rehnquist said any suggestion that Scalia should recuse himself “is ill considered.” [One reason I want to read the text is that this quote is hard to square with the suggestion later in the article that Rehnquist also took no position on the merits.]
Rehnquist … said that while justices often consult with colleagues when they are considering recusing themselves from a case, there is no formal procedure.
“It has long been settled that each justice must decide such a question for himself,” he wrote in a letter sent to Lieberman, Leahy and each of the other court justices.
Rehnquist did not give an opinion about whether Scalia should step down from hearing the case, but made clear that it was up to Scalia — and no one else — to make that decision. After the case is over “anyone at all is free to criticize the action of a justice,” Rehnquist wrote.
Leahy said Monday that Rehnquist's letter confirms that the Supreme Court, unlike federal appeals courts and district courts, has no recusal procedure or oversight system. He also defended the timing of the letter.
“Because Supreme Court decisions cannot be reviewed, waiting until after a case is decided needlessly risks an irreversible, tainted result and a loss of public confidence in our nation's highest court,” Leahy said.
Allow me to commit lèse majesté here: On these facts, and in the fullness of the context, Scalia's impartiality is very much in doubt. In fact, I personally have very little faith in it. Recusal is called for. A duck hunting trip is nothing like a state dinner. As the Senators said, “when a sitting judge, poised to hear a case involving a particular litigant, goes on a vacation with that litigant, reasonable people will question whether that judge can be a fair and impartial adjudicator of that man's case.”
Remember: the next President will almost certainly appoint at least one, maybe up to three, Justices…an issue oddly absent from the campaign so far.
Doesn’t it seem especially odd that Justice Scalia has recused himself in the Pledge of Allegiance case, where he’s made statements about the legal issues in the case but has given no indication of personal bias, while it looks like he probably won’t recuse himself in this case, where you’ve made the case for bias forcefully?
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