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View Diary: Justice Thomas Gets One Right (130 comments)

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  •  Not Likely To Be An Issue (none)
    There is just no consensus that recusal is called for in these circumstances. There have been published reports that Justice Ginsburg had 50 non-criminal cases in which the United States was a party on her docket at the time she was under consideration for the S. Ct. She didn't recuse, and neither did Breyer in the smaller number of cases he had in the 1st Circuit.
    •  Ethics By Consensus? (none)
      Are you seriously arguing that ethics are to be determined by consensus?  

      The ethics apologists, including Professor Rotunda, put up the strawman that those who see an ethical problem here believe that the proper remedy is recusal in every case where the government is a party.  This is not what is being sought in the Hamdan case.  

      The intervenor moving for recusal in Hamdan says that a federal judge with whom a promotion is discussed owes litigants the opportunity to make a motion for recusal by disclosing the relevant facts.  This is consistent with the Supreme Court's decision in Microsoft Corp v. United States, 530 U. S, 1301, 1302 (2000) that the relevant test to be applied is whether a reasonable observer who is informed of all the surrounding facts and circumstances would believe there is an appearance of impropriety.    

      As it is, Judge Roberts, who knew the relevant facts, self-determined the Bush Administration's desire for secrecy regarding the judicial nomination process was more valuable than disclosure of the facts relevant to determining whether a conflict of interest existed.  

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