Justice by Designation
posted by Gerard Magliocca
I was listening to a discussion on NPR about Supreme Court recusal practices, and the point was made (as it frequently is when this topic is raised) that the Justices must adopt narrower recusal standards than other judges because nobody can replace a missing Justice. Now there is a proposal by Senator Leahy to make senior Justices eligible to sit on Supreme Court cases in place of a recused Justice, but that is problematic because the pool of senior Justices capable of hearing cases is usually so small and the ideological views within that pool will be well-known to litigants who want to game the system.
This leads to wonder whether we should say that when a Justice is recused then any federal circuit judge can be tapped to “sit by designation” on the Supreme Court. After all, we let federal district judges sit by designation in the circuits all the time. This could be subject to some limits (only active judges, or not judges from the federal circuit whose ruling is being reviewed), the most of important of which is that the selection should be random instead of under the control of the Chief Justice. I think the judicial system might be improved if the Justices were subject to the same recusal standards that other judges follow and if there was an occasional “special guest star” appearance by other judges on the Court.