Procrustes Stretched
Dante's Manifesto
Raskin is quite the intellectual. Personally, I wish we had a few more like him in the legislative branch of government. Earlier, we did have faux intellects like Newt Gingrich in the House, but we know how that all ended (resigning in disgrace).
Raskin:
The Justice Department and Attorney General Merrick Garland can invoke two powerful textual authorities for this motion: the Constitution of the United States, specifically the due process clause, and the federal statute mandating judicial disqualification for questionable impartiality, 28 U.S.C. Section 455.
The Constitution has come into play in several recent Supreme Court decisions striking down rulings by stubborn judges in lower courts whose political impartiality has been reasonably questioned but who threw caution to the wind to hear a case anyway. This statute requires potentially biased judges throughout the federal system to recuse themselves at the start of the process to avoid judicial unfairness and embarrassing controversies and reversals.
links -- context:
The Fourteenth Amendment Due Process Clause
www.law.cornell.edu
28 U.S. Code § 455 - Disqualification of justice, judge, or magistrate judge
(a) Any justice, judge, or 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:
www.law.cornell.edu
Raskin:
The constitutional and statutory standards apply to Supreme Court justices. The Constitution, and the federal laws under it, is the “supreme law of the land,” and the recusal statute explicitly treats Supreme Court justices like other judges: “Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The only justices in the federal judiciary are the ones on the Supreme Court.
This recusal statute, if triggered, is not a friendly suggestion. It is Congress’s command, binding on the justices, just as the due process clause is. The Supreme Court cannot disregard this law just because it directly affects one or two of its justices. Ignoring it would trespass on the constitutional separation of powers because the justices would essentially be saying that they have the power to override a congressional command.
www.nytimes.com
This is an interesting argument Raskin is making. I for one am wondering if it will get amplified enough to take hold, and wondering where it would go.
Raskin:
The Justice Department and Attorney General Merrick Garland can invoke two powerful textual authorities for this motion: the Constitution of the United States, specifically the due process clause, and the federal statute mandating judicial disqualification for questionable impartiality, 28 U.S.C. Section 455.
The Constitution has come into play in several recent Supreme Court decisions striking down rulings by stubborn judges in lower courts whose political impartiality has been reasonably questioned but who threw caution to the wind to hear a case anyway. This statute requires potentially biased judges throughout the federal system to recuse themselves at the start of the process to avoid judicial unfairness and embarrassing controversies and reversals.
links -- context:
The Fourteenth Amendment Due Process Clause
Interpretation: The Fourteenth Amendment Due Process Clause | Constitution Center
Interpretations of The Fourteenth Amendment Due Process Clause by constitutional scholars
constitutioncenter.org
due process
28 U.S. Code § 455 - Disqualification of justice, judge, or magistrate judge
(a) Any justice, judge, or 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:
28 U.S. Code § 455 - Disqualification of justice, judge, or magistrate judge
Raskin:
The constitutional and statutory standards apply to Supreme Court justices. The Constitution, and the federal laws under it, is the “supreme law of the land,” and the recusal statute explicitly treats Supreme Court justices like other judges: “Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The only justices in the federal judiciary are the ones on the Supreme Court.
This recusal statute, if triggered, is not a friendly suggestion. It is Congress’s command, binding on the justices, just as the due process clause is. The Supreme Court cannot disregard this law just because it directly affects one or two of its justices. Ignoring it would trespass on the constitutional separation of powers because the justices would essentially be saying that they have the power to override a congressional command.
Opinion | Jamie Raskin: How to Force Justices Alito and Thomas to Recuse Themselves in the Jan. 6 Cases
Can they really decide for themselves whether they can be impartial?
This is an interesting argument Raskin is making. I for one am wondering if it will get amplified enough to take hold, and wondering where it would go.
