Recusal, Government Ethics, and Superannuated Constitutional Theory

Abstract

Something good and something bad happened recently in government and judicial ethics; no one has truly noticed yet for some reason. In Nevada Commission on Ethics v. Carrigan, 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. And in doing so, I place Carrigan in the important context of two previous judicial ethics blockbusters: Caperton v. A.T. Massey Coal and Republican Party of Minnesota v. White. The bad thing is that the Carrigan Court 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. That path is reconceptualizing the nature of judicial action away from the judge and toward the judge as a trustee.

Keywords: Nevada Commission on Ethics v. Carrigan, Caperton v. A.T. Massey Coal Co., Judicial Recusal, Judicial Disqualification, Judicial Ethics, Code of Judicial Conduct, Republican Party of Minnesota v. White, Judges as Trustees