Good luck with that argument, Scott Sundby. After Brett Kavanaugh unloaded on Senate Democrats in an angry response to being accused of running a gang-rape ring, the University of Miami law professor writes at The Hill, the newest Associate Justice has no choice but to recuse himself from all “politically charged cases” that come before the court. “No one should fall for the myth that he will be free of the very human emotions he put on full display at his hearing,” Sundby warns, with broad recusal the only option for the credibility of the Supreme Court:
In a Trump-like tirade that would have led to a lawyer being cited for contempt of court if spoken to a judge, Kavanaugh not only aggressively attacked the Democrats on the committee by claiming that Ford’s allegations were “revenge on behalf of the Clintons,” but he darkly promised that “what goes around comes around.”
Now that Kavanaugh has been confirmed, how does the court go forward with a justice who has openly and angrily revealed himself to bear a partisan vendetta? …
The only possible answer is that Kavanaugh must recuse himself from all future cases where the court is deciding an issue with ramifications for the electoral system or the executive branch’s power. Canon 2 of the Code of Conduct for United States judges requires a judge to avoid “the appearance of impropriety,” commanding: “A judge should respect and comply with the law and should act all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” There simply is no way after watching Kavanaugh’s belligerent outbursts that a significant portion of the country will have an iota of public confidence that his vote will not be influenced by his allegiance to President Trump who ridiculed his accuser or by his antagonism towards the Democrats who he declared were on a “search and destroy” mission.
Nor when it comes to recusal is it any defense whether, as some have argued including Kavanaugh in his op-ed, his rage was justified in defending his name and reputation. Justified or not, no one could watch him volcanically brimming over with partisan rancor and resentment without harboring deep doubts that he could now miraculously wipe the slate clean and be fair-minded.
Hmmm. By that measure, shouldn’t Ruth Bader Ginsburg already be recusing herself from the same cases? In July 2016, Notorious RBG told the New York Times’ Adam Liptak that it might be time for her to move to New Zealand if Donald Trump got elected.
“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”
“He is a faker,” she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. “He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”…
“At first I thought it was funny,” she said of Trump’s early candidacy. “To think that there’s a possibility that he could be president… ” Her voice trailed off gloomily.
“I think he has gotten so much free publicity,” she added, drawing a contrast between what she believes is tougher media treatment of Democratic candidate Hillary Clinton and returning to an overriding complaint: “Every other presidential candidate has turned over tax returns.”
This goes much farther into the political realm straight into electioneering in the middle of a campaign. It amounted to a de facto endorsement of Trump’s opponent, Hillary Clinton. As Allahpundit pointed out at the time, this explicitly violated Canon 5 of the Code of Conduct for United States Judges, which expressly forbids judges to “publicly endorse or oppose a candidate for public office,” emphasis mine. Ginsburg did so twice, only apologizing later for having made the comments publicly rather than expressing regret over the comments themselves — as Kavanaugh did last week in his op-ed in the Wall Street Journal.
And yet no one has seriously demanded that Ginsburg recuse herself from “politically charged cases to maintain the integrity and impartiality of the court,” as Sundby does on the platform The Hill provides for it. It doesn’t take much thought to understand why Academia wouldn’t apply the same standard to the liberal wing of the court.
This is nothing more than a dog-in-the-manger ploy, an attempt to pre-emptively delegitimize Kavanaugh’s work over the next few years by painting it as partisan. Instead, it exposes its advocates as hypocrites when it comes to politicization.
By the way, expect recusal fever to peak in the next couple of days:
Justice Brett Kavanaugh’s first vote as a member of the Supreme Court could come as soon as Tuesday or Wednesday on a Trump administration request testing how much power courts should wield over top executive branch officials.
The administration has already made one unsuccessful run at the high court on the issue: It asked Justice Ruth Bader Ginsburg last week to step in to block depositions of Commerce Secretary Wilbur Ross and Justice Department civil rights chief John Gore in lawsuits challenging Ross’ decision to put a question about citizenship on the 2020 U.S. Census. …
Justice Department lawyers argue the depositions of Ross and Gore ordered by a federal judge in New York City constitute an unwarranted intrusion into executive authority and could prove distracting to senior officials with important duties.
It’s the kind of argument that could appeal to Kavanaugh, who has advocated broad interpretations of executive power. However, deferring to the Trump administration within days of joining the court could appear to confirm many of Kavanaugh’s critics’ claims that he’s likely to be a rubber stamp for Trump and his agenda.
Best guess: That’ll worry Kavanaugh as much as it worries Ginsburg, which is to say not at all. He’s there to do his job, just as she’s there to do hers. There’s only one Supreme Court and only nine members on its panel, which is why recusals are very rare, and occur as a result of real and personal conflicts of interest or previous work on cases that come before the court. Elena Kagan recused herself from a few such cases when it involved work she did as Solicitor General; various justices have felt it proper to recuse on rare occasions when their investments involved one of the parties. Otherwise, activists can demand recusals as much as they want, as long as they’re prepared to look like fools, shrieking about bias while exposing their own.