Baude on the Brown NominationWill Baude's post on what Brown has actually said about Lochner is essential reading if you are interested in the current controversies over the judicial selection process.
The standard for recusal is what we call in the law a "soft" one, and that is a big part of the problem. A federal statute provides that "[a]ny justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."
This standard, like many in the law, focuses not on the actual presence of wrongdoing -- in this case "bias" -- but rather the appearance of wrongdoing or impropriety. The statute asks not whether the judge in question will in fact be fair, but rather whether "reasonable" people will think he can be fair. (The American Bar Association's Model Code of Judicial Conduct also employs an objective "reasonable person" approach.)
Exactly how do we apply this "reasonable person" standard? The Supreme Court has made at least one thing clear - we should assume that reasonable people are somewhat skeptical. Even though judges are rarely biased in fact, "people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges."
For that reason, as one Court of Appeals has noted, "it is essential to hold in mind that these outside observers are less inclined to credit judges' impartiality and mental discipline than the judiciary itself would be."
Otsuka on Skepticism About Saving the Greater Number at Bristol
At the University of Bristol, Mike Otsuka (UCL) presents Scepticism About Saving the Greater Number. Surf on over to Crooked Timber, for some more on Otsuka from Chris Bertram.
Meidinger on Property & Development at Buffalo
At SUNY Buffalo, Errol Meidinger presents Property Law in the Maw of Development Policy and Institutional Theory: Problems of Structure, Choice and Change, with comments by Sharmistha Bagchi-Sen.
Privilege Sticks, or why the defeat of cloture on Pickering is important
The democrats have defeated the cloture vote on Charles Pickerings nomination to the U.S. Court of Appeals. Here is taste from the L.A. Times report:
Senate Democrats today upheld their fourth filibuster against a federal judicial nominee this year, citing civil rights concerns as they easily blocked a final vote on the nomination of federal Judge Charles W. Pickering Sr. of Mississippi to a seat on an appellate court.
Pickering's allies fell six votes short of the 60 they needed to break the filibuster and force final action on his nomination. The 54-43 vote followed a short and bitter debate in which the judge's supporters claimed that he was being personally smeared. His critics said they were only protesting his record.
I don't know very much about the merits of the Pickering nomination. I do think that we are coming close to the point where filibusters of judicial nominees will become cemented in the common law or traditions of the Senate. This may not seem important, but I actually think it is crucial to the long-run future of the judicial selection process. Once Senators come to see filibustering of judicial nominees as a stick in the bundle of Senatorial privilege, then any radical effort to pluck the stick out is likely to engage individual non-majority leadership Senators' strong self-interest in the preservation of the status quo. Protect the whole bundle, Senators reason, lest the privilege sticks be plucked out, one by one. In other words, there is a natural (and I think rational) tendency for Senators to defend the status quo bundle of privilege sticks, even against ideological interest, because of the possibility of a slippery slope, at the bottom of which lies an increase in power for the majority leadership and a decrease in power for individual Senators.