Letter to the New Yorker

In case anyone is interested, here is the letter that I actually wrote to the New Yorker: Jeffrey Toobin is incorrect in saying that the federal statute governing judicial conflicts of interest applies only to lower-court judges, and not to Supreme Court justices. (At p. 47). The Federal Disqualification Statute (28 U.S.C. sec. 455) expressly applies to "Any justice … of the United States." It is also incorrect to say that the only ground for recusal is whether there is something to be gained by the judge or his spouse from the outcome of the litigation, and that therefore recusal is inappropriate. (At p. 48). The broad, catch-all provision of the statute (sec. 455(a)) requires a justice to recuse him- or herself in any proceeding in which the justice's impartiality "might reasonably be questioned." That is, if a reasonable person might have doubts about the justice's impartiality, recusal is required. In Justice Thomas' case, his wife, Ginny, is a lobbyist for organizations that oppose the health care act, and his family's income derives in significant part from those lobbying activities. Thomas' wife has a unique opportunity for improper ex parte contacts with the justice. In addition, her success as a lobbyist encourages contributions to her organizations and enhances the justice's family income. Not only might a reasonable person question the justice's impartiality, therefore, but a number of reasonable people have in fact done so.

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