Ethics

Post here.  Just in the years we've been blogging, we've seen politics flavor recusal motions and opinion pieces in the Scalia duck hunting case, Caperton, the Gulf Oil drilling moratorium case, and the Prop 8 case (California's new same sex marriage case).    One of the problems, it seems to me, is that the right amount of recusal and the right amount of "recusal talk" is a mean between excess and deficiency.  So we see a lot of commenters accusing each other of inconsistency and hypocrisy as they try to find the right balance in the middle and alternately play offense and defense.

As I commented previously, "My concern is that 'if you build it, they will come.'  That is, [if we make it easier to demand recusal] we're likely to suffer an increased flow of recusal motions, demands for recusal, more permissive standards for recusal, and claims that reasonable people could doubt the impartiality of this judge or that judge.  That's because the litigator's calculus for bringing motions often is, 'if it's not frivolous and it could help my client, I should file it.'  As I often say, sometimes 'ethics' is just a brick they throw at you.  And I don't want to encourage throwing bricks at judges for the simple purpose of winning.  An increase in recusal motions will be, in essence, an increased politicization of the judiciary."