washingtonpost.com
A deep bench of substitute justices goes unused

By Robert Barnes
Washington Post Staff Writer
Monday, August 9, 2010; A11

Justice John Paul Stevens has been retired from the Supreme Court for more than a month. Maybe it's time to bring him back.

Or perhaps Justice Sandra Day O'Connor. Since she left in 2006, she's been crisscrossing the nation denouncing the evils of electing judges rather than appointing them, and serving on important federal and state commissions.

Along the way, she's filled in and decided cases with almost every federal appellate court in the nation. Save one. The one to which she was appointed in 1981.

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) is pondering whether a change is needed. He's considering legislation that would allow a retired member of the Supreme Court to replace a justice who has recused himself -- or herself -- in a particular case.

This would avoid the court potentially splitting 4 to 4 on a case and, Leahy hopes, encourage justices to recuse themselves more often when there is an appearance of partiality.

"The highest court in the land is the final word on constitutional law," Leahy said in a statement to The Washington Post. (Leahy first discussed the idea this summer with the National Law Journal.) "I want justices to feel free to recuse themselves when they have a conflict in a specific case."

Justices recuse themselves occasionally from cases. The choice is theirs and they rarely explain the reason. Most often it is because of a financial conflict or the involvement of a family member. As the court has changed recently -- with four new members in five years -- the reason for recusal is increasingly because a justice played a role in the case in the lower courts.

Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Sonia Sotomayor were all previously appeals court judges, and all have had to sit out cases that landed in the high court. In her first term, which concluded in June, Sotomayor recused herself from six cases, for instance, and did not take part in a greater number that the court was considering whether to review.

Elena Kagan, the newest justice, will be absent from the court's mahogany bench for more than that. She already has identified a dozen cases she worked on as solicitor general that she will not hear as a justice, and more are likely as the court accepts new cases for the term that begins in October.

Republican senators want Kagan to miss more than that. They demanded to know if she played a role in formulating the Obama administration's legal defense of the health-care bill and wanted to know if Kagan would excuse herself from consideration if the issue came before the Supreme Court.

She said she may have attended one meeting about the issue but indicated she saw no reason to recuse herself. If questions about whether she should consider a case arose, she said, she might consult her colleagues or judicial experts.

Leahy has long felt justices don't recuse themselves enough -- he is still smarting over Justice Antonin Scalia's decision to participate in a case involving then-Vice President Richard B. Cheney's energy task force after it became public that Cheney and Scalia were duck-hunting buddies. After he announced his retirement, Stevens suggested Leahy look at the issue of letting retired justices fill in.

"There are now three retired justices who can sit on any federal court, except the court to which they were confirmed," Leahy said. "If there is a way for retired justices to help the court fulfill its role in our democracy, I think we should consider it. Justice Stevens is absolutely right about this."

When the court splits evenly on a case, the decision of the lower court stands, but without greater precedential value.

Any discussion of Congress telling the court how to conduct its business raises separation-of-powers questions. Any legislation would likely be enabling rather than mandatory, simply allowing the court to use retired justices if it chooses and setting up some sort of selection mechanism.

That is complicated as well. If a lower court wants a retired justice to sit in on a case, it asks the chief justice to make the assignment. But at the high court, allowing the chief justice to choose from the retired justices could, in effect, be giving him two votes. An alternative would be to allow the justices to vote on the replacement. But should the recused justice have a say? Should there be a rotation?

And, at some point, theory steps aside and reality sets in. "It's an interesting idea," said James Sample, a Hofstra law professor who has specialized in studying judicial recusals. "The challenge is that it's so difficult to divorce discussion of the proposal from the individual justices who might end up replacing the recused justices."

In other words, the bench currently consists of Stevens, O'Connor and retired justice David H. Souter, all of whom are to the left of the court's dominant conservatives.

It is as unlikely to think Republicans would think it is a good idea to put them back in the lineup, Sample said, as it is to think Leahy would be as keen on the idea if the available replacements were, say, former chief justices William H. Rehnquist or Warren E. Burger.

One solution, Sample suggested, would be to come up with a plan but delay implementing it for a number of years. By then, the replacement pool would likely be different.

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