| p>A standing-room-only crowd filled the courtroom of | | | | Typically they do not disclose their reasons for recusal, |
| Ninth U.S. Circuit Court of Appeals recently when | | | | though it is usually apparent that a justice may have a |
| retired Supreme Court Justice Sandra Day O'Connor | | | | personal or financial conflict of interest, or may have |
| appeared there to help decide three Montana cases. | | | | worked on a case or a closely related matter prior to |
| Although it is rare to see a former member of the | | | | joining the court. |
| nation's highest court fill in on a lower court panel, it is | | | | The remaining eight justices decide the case if one of |
| not unusual in the federal court system for judges to | | | | their brethren takes a pass. This means the court can |
| substitute for one another. The only court that does | | | | split 4-4, which is liable to happen on any number of |
| not permit pinch-hitters is the Supreme Court. | | | | issues where the modern court is polarized. A tie |
| Sen. Patrick J. Leahy, D-Vt., who chairs the Senate | | | | means the lower court's decision stands, but the |
| Judiciary Committee, thinks it may be time for the | | | | Supreme Court's action does not establish a |
| Supreme Court to allow retired justices to fill in when | | | | precedent that is binding in future cases. Leahy and |
| an active member of the court recuses himself or | | | | Stevens argue that justices may avoid recusing |
| herself from a case. The suggestion, according to | | | | themselves to avoid having cases end in such an |
| Leahy, comes from none other than the just-retired | | | | unfulfilling way. |
| Justice John Paul Stevens, who at age 90 may | | | | "If there is a way for retired justices to help the court |
| already be feeling some remorse over his decision to | | | | fulfill its role in our democracy, I think we should |
| step down. | | | | consider it," Leahy told The Washington Post. |
| Once a federal judge, always a federal judge. Article III | | | | It strikes me that the substitution proposal would create |
| of the U.S. Constitution establishes that federal judges | | | | much bigger problems than it would solve. If a tie |
| "shall hold their offices during good behavior," | | | | occurs because of a recusal, the Supreme Court can |
| effectively allowing them to serve for life unless | | | | revisit the issue in another case. On the other hand, a |
| impeached.(1) After retirement, judges may take what | | | | justice who opts not to step aside in a particular case |
| is known as "senior status," continuing to receive the | | | | is open to second-guessing from critics, who will argue |
| same annual salary they received while active and | | | | that the justice was afraid to give a substitute with a |
| retaining the ability to hear cases on a part-time | | | | different philosophy the opportunity to cast the deciding |
| basis.(2) | | | | vote. It is much healthier for the high court to simply |
| These provisions preserve the judiciary's | | | | wait to set its nationally binding, unreviewable |
| independence and integrity by immunizing judges from | | | | precedents in cases where no justice needs to be |
| political and financial pressures. They also provide a | | | | disqualified. |
| pool of experienced judges ready to step in whenever | | | | Leahy's proposal also carries a partisan tone. Former |
| a full-time judge is unavailable. | | | | Justice O'Connor is a judicial moderate, while the other |
| Federal law provides that "Any retired circuit or district | | | | two current Supreme Court retirees - Justices |
| judge may be designated and assigned by the chief | | | | Stevens and David Souter - are more closely aligned |
| judge or judicial council of his circuit to perform such | | | | with the court's liberal faction, which is currently |
| judicial duties within the circuit as he is willing and able | | | | outnumbered 5-4 on many issues by the conservative |
| to undertake." This means that judges who have | | | | bloc led by Chief Justice John Roberts. Allowing these |
| retired from district courts may, on occasion, serve on | | | | retirees to step back onto the high court is a no-lose |
| the three-judge panels of the circuit courts of appeals. | | | | proposition for Leahy, a highly partisan backer of the |
| Active district court judges may also be called on from | | | | liberals. Only O'Connor is even remotely likely to side |
| time to time to fill vacancies at the circuit court level. | | | | with the conservatives in a split decision, and even |
| Meanwhile, senior judges and justices from higher | | | | then she is going to be among the more moderate |
| courts, including the Supreme Court, may fill vacancies | | | | conservatives. In nearly all cases, allowing substitutions |
| in lower courts. Former Justice O'Connor took senior | | | | will either strengthen the liberals or leave their power |
| status when she left the Supreme Court in 2006 and | | | | unchanged. |
| has since heard cases in appellate courts across the | | | | Leahy has not said how he would propose to go |
| nation. | | | | about selecting which justice should fill in for a vacancy |
| This substitution and mixing of judges from various | | | | in a particular case. |
| levels of the court system is intellectually healthy as | | | | We do not have a non-ideological, non-political |
| well as efficient. Lower court judges can remind | | | | Supreme Court today. That's too bad. But we do have |
| appellate judges, who may not have run a trial court in | | | | an independent court that is free to decide cases |
| many years (if ever), what it is like on the front lines of | | | | without regard to what Congress or the President |
| the federal justice system. Judges from higher courts | | | | would prefer. We need only look to last year's Citizens |
| can bring renewed rigor and a broader perspective to | | | | United decision-and President Obama's childish State |
| lower court proceedings. | | | | of the Union rant-for proof of that. The Leahy-Stevens |
| But I don't think it is a good idea to extend this | | | | proposal looks like an effort to stack the bench with |
| mix-and-match system of judicial selection to the | | | | their preferred bench players. When it comes to the |
| nation's highest court. I think it would further politicize | | | | highest court in the land, we should accept no |
| the court and undermine respect for the justices and | | | | substitutes. |
| their decisions. This would not be good for the country. | | | | Sources: |
| Justices have complete discretion over whether to | | | | (1) U.S. |
| recuse themselves from hearing a particular case. | | | | |