Posted by someone else

And aren’t we forgetting the real villian here? Katherine Harris? 

Posted by echan

I do think, however, that a case can be made for recusals based on conflicts of interest due to family ties for Scalia, Thomas, and even Rehnquist (the article calls for his recusal based on the “retirement conflict,” but like Scalia and Thomas, he had a family conflict, his daughter Janet ). 

Posted by echan

Posted by saurabh

death rates before i think are immaterial. the point is, if you were trying to guess at that point how long it would be before a republican could let you retire, assuming 12 years wouldn’t have been unreasonable, because who the heck knows.

echan: you’re confusing impeachment with recusal. husband’s comment indicated justice o’connor’s state of mind. justice o’connor was not deciding on recusal based on her husband’s interpretation of her feelings, but on her own position. if justice o’connor felt that way – strongly aligned politically (unquestionably true) with personal stake (the matter at hand) – then not walking away was hugely unethical. that we have to guess what she thought at the time is because she knew the law and gave no comment; that’s our problem; it doesn’t change her ethical position. 

Posted by david

as for the other part–this is a really minor argument–my favorite kind –I don’t agree about your specific point, but I do agree that it’s more likely that a sitting vice president could win office today than 50 years ago.

There were three presidents assassinated before 1960 and one afterwards. But if you count the many more who died of natural causes in office before completing their one or two terms before 1960, I think it’s weighted towards shorter lives before. See this list of term lengths at wikipedia . I think that sitting vice presidents getting elected now has more to do with other contemporary political trends–like a general consolidation of national government power, U.S. global supremacy, new advantages of incumbency, or possibly just the sheer corruption of our particular era (i.e. maybe there’s hope), etc. 

Posted by someone else

The test is “whether an objective, disinterested, lay observer fully informed of the facts . . . would entertain a significant doubt about a judge’s impartiality. ” “It is enough that the average layperson would have doubts about any judge’s impartiality under [the] circumstances” that create a recusal issue. When appearances are at issue, a judge “ought to consider how his participation . . . looks to the average person in the street. Use of the word ‘might’ in the statute was intended to indicate that disqualification should follow if the reasonable man, were he to know all the circumstances, would harbor doubts about the judge’s impartiality.”

The average layperson standard gives judges a lot of leeway to not recuse themselves. Justice O’Connor’s husbands comment is not sufficient, I believe to satisfy this standard. If so, someone on the left could have probably drummed up something against prehistoric, yet hearty, Stevens to force his recusal as well.

As an aside (and separate from this argument), even if O’Connor recused herself from the Bush v. Gore case, Bush would have still prevailed. While sulking Dems like to believe that it was a 5-4 decision, it was really a 7-2 decision (Souter and Breyer agreed that the manual recounts violated the Equal Protection Clause). 

Posted by echan

Posted by david

Two minor points: If O’Connor was not timing her decision but did it out of necessity as echan’s implying, she wouldn’t have waited for a successor to be appointed as she did when she made the announcement she was resigning. Also, david, there have only been one sitting vice-president elected to the presidency since Martin Van Buren.

-s 

Posted by someone else

The Georgetown law journal article I linked above (which is quite good on the subject, if you’re interested you should read it, though it’s quite long) says:

“The statute divides grounds for recusal into those based on appearances ([sec] 455(a)) and those based on facts that are automatically disqualifying ([sec] 455(b)). Subsection 455(a) requires a federal judge to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Under [sec] 455(a), the appearance of partiality disqualifies even if in fact the judge is fully capable of impartially judging the case. The test is “whether an objective, disinterested, lay observer fully informed of the facts . . . would entertain a significant doubt about a judge’s impartiality.” “It is enough that the average layperson would have doubts about any judge’s impartiality under [the] circumstances” that create a recusal issue. When appearances are at issue, a judge “ought to consider how his participation . . . looks to the average person in the street. Use of the word ‘might’ in the statute was intended to indicate that disqualification should follow if the reasonable man, were he to know all the circumstances, would harbor doubts about the judge’s impartiality.” The policy behind [sec] 455(a) is “to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.”"

And I think we can all agree that, at the very least, “the appearance of impropriety” is what we were left with after that verdict. 

Posted by saurabh