Swisher on Recusal and the Supreme Court’s Carrigan Decision
Posted by judicialethicsforum on Friday, May, 11, 2012
Prof. Swisher (Phoenix) has posted this essay about Carrigan, recusal, and related constitutional theory. Here is the abstract:
Something good and something bad happened recently in government and judicial ethics; no one has truly noticed yet for some reason. The Supreme Court all but banned First Amendment analysis as applied to recusal laws, both legislative and judicial. That, actually, is the good thing, or so I argue. The bad thing is that the Court, in doing so, used a geriatric approach to constitutional theory. The approach is unduly reverent of anything “old;” and old is not limited to the practices of the Founding Fathers, but also includes “traditional” practices within some undefined range. But what is old is not necessarily wise, and a theory to the contrary leads to degenerative results in general and in ethics in particular, or so I argue further. I conclude with a return to the positive, hoping that the Court’s path may have inadvertently sparked a viable conceptual foundation for judicial recusal law and practice, which of course, have received much general press and scholarly attention of late.
For the full essay, click here; Keith Swisher, Recusal, Government Ethics, and Superannuated Constitutional Theory, 72 Md. L. Rev. (forthcoming Dec. 2012).