Recusal Standards and the Catholic Judge

My colleague Elizabeth Brown adds some legal insight to our recusal discussion:

Robert Araujo raises the issue of what are the standards for recusal for Supreme Court Justices.  Ed Harnett has addressed this in his post, but it might be useful to provide the relevant language from 28 USC Section 455:

§  455.  Disqualification of justice, judge, or magistrate [magistrate judge]

(a) Any justice, judge, or magistrate [magistrate judge] of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

. . . .

Roberts has represented a large number of corporations while at Hogan & Hartson but he could still hear cases in which these corporations are parties unless he worked on the matters before the Supreme Court for the corporations while he was at Hogan & Hartson or another lawyer at Hogan & Hartson was working on the matters while Roberts was with the firm.  28 USC §  455 (b)(2).  Just because he was a partner at Hogan & Hartson, however, does not mean that he must recuse himself from every case involving Hogan & Hartson that may come before the Supreme Court.  So Fr. Araujo's example of Justice Ginsburg and the ACLU would be similar to this later situation, i.e., unless Justice Ginsburg had worked on the matter that the ACLU was bringing before the Supreme Court she would not have been required to recuse herself under §  455.  While paragraph (a) of §  455 and paragraph (b)(1) require a Justice recuse himself in situations where his impartiality could reasonably be questioned or where he has a personal bias, this generally has not been extended to cover situations in which former clients of the Justice when he was in practice come before the Supreme Court on matters that he did not work on for them when he was in practice.  As Ed Harnett has already noted in his posting, paragraphs (a) and (b)(1) of §  455 would be the standard that would be applied to a situation in which a Justice's religious beliefs required that he decide a case in only one way.  In this case, he would not be impartial and should recuse himself.  For Supreme Court justices, they are their own arbiters of when they need to recuse themselves.  So for example, it would solely up to Roberts to determine if the Church's teaching on abortion precluded him from deciding an abortion case on the legal merits but forced him to decide the case in only one way.  To date, none of the other Catholic justices have felt compelled to recuse themselves when hearing abortion cases.