By Olivia Firmand
On Saturday, October 6, 2018, the United States Senate voted 50-48 to confirm Justice Kavanaugh to the Supreme Court.[1] The confirmation came days after a contentious eight-hour hearing during which Justice Kavanaugh denied Dr. Christine Blasey Ford’s allegations of sexual assault from an incident thirty-six years ago.[2] During Kavanaugh’s opening statement to the Senate Judiciary Committee, Kavanaugh accused the senators of engaging in a “grotesque and coordinated character assassination … a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.”[3] Now that Justice Kavanaugh has been confirmed, a new issue is raised: is Justice Kavanaugh obligated to recuse himself from cases dealing with sexual assault, left leaning interest groups, or the Clintons?
The law requires Supreme Court justices, and all other United States judges for that matter, to recuse themselves if there is a conflict of interest.[4] However, there are no means of enforcing this requirement other than by congressional impeachment of that particular justice.[5] There has only been one successful impeachment of a Supreme Court justice, which occurred in 1804 with Justice Samuel Chase; however, Chase was later acquitted by the Senate and not removed from the bench.[6] Additionally, the impeachment of Justice Chase was for poor judicial judgment rather than legal misconduct.[7] The bar for impeachment of a Supreme Court Justice is a high one, and impeachment requires a two-step process.[8] Just as the law requires for presidents, impeachment of a justice requires 1) House majority approval for indictment to impeach and 2) a trial in the Senate on the allegations.[9] Due to the difficulty of meeting these requirements, the onus is effectively on the justices to decide when and under what circumstances to recuse themselves from a case.
It is not all that uncommon for justices to exercise their discretion to recuse themselves. In Exxon Shipping Co. v. Baker, Justice Samuel Alito recused himself because he owned several hundred thousand dollars’ worth of Exxon stock, and the decision would have determined the amount of funds Exxon was required to pay to stockholders, creating a clear conflict of interest.[10] Similarly, after Justice Elena Kagan was confirmed, she immediately recused herself from twenty cases due to her previous role as Solicitor General, since she had been responsible for preparing the government’s argument in those cases.[11] However, many members of the legal field believe that a justice has a “duty to sit,” implying that a justice has a responsibility to hear a case despite there being a conflict of interest.[12] The doctrine can be traced to William Blackstone, who believed that a challenge to a judge’s neutrality would cause public distrust in the legal system; therefore, Blackstone argued that a judge had an obligation to hear and decide a case unless there were serious grounds for recusal.[13] Justice Scalia embraced this “duty” in Cheney v. United States District Court, from which Justice Scalia did not recuse himself despite accepting free air fare to be a personal guest of then-Vice President Dick Cheney’s hunting trip in Louisiana; Justice Scalia later held in Cheney’s favor.[14]
Due to the statements made in the September 27th confirmation hearing, Justice Kavanaugh would have to recuse himself from numerous cases argued before the Supreme Court to preserve impartiality.[15] Justice Kavanaugh’s temperament during his confirmation hearing made it evident that he will be unable to impartially decide cases involving politically left leaning organizations such as Planned Parenthood or the ACLU.[16] Similarly, although the Supreme Court rarely hears sexual assault cases other than to determine the constitutionality of particular statutes, the subject matter would still call for Justice Kavanaugh’s recusal because of the allegations against Kavanaugh, his response to the allegations, and the public’s likely belief that Kavanaugh is biased.[17]
If Justice Kavanaugh subscribes to the “duty to sit” perspective, and because there is no truly enforceable or meaningful legal obligation to recuse himself, Justice Kavanaugh remains free to opine on cases in which there would be obvious conflicts of interests. Until the Supreme Court has a more enforceable legal duty to be impartial, or at the very least, create the appearance of impartiality, Justice Kavanaugh will remain on the bench to decide cases for which there is a reasonable question about his ability to remain objective due to revealed biases and accusations of sexual assault.
[1] Sheryl Stolberg, Kavanaugh Is Sworn in after Close Confirmation Vote in Senate, N.Y. Times (Oct. 6, 2018), https://www.nytimes.com/2018/10/06/us/politics/brett-kavanaugh-supreme-court.html.
[2] Ellen Cranley and Michelle Mark, Here are All the Sexual-Misconduct Allegations against Brett Kavanaugh, Business Insider (Sept. 27, 2018, 10:39 AM), https://www.businessinsider.com/brett-kavanaugh-sexual-assault-misconduct-allegations-2018-9.
[3] Gina Martinez, Here’s Brett Kavanaugh’s Opening Statement from Today’s Senate Judiciary Committee Hearing, Time (Sept. 27, 2018), https://time.com/5409283/brett-kavanaugh-opening-statement/.
[4] See 28 U.S.C. § 455(a) (2018) (discussing the reasons requiring a Supreme Court Justice to recuse themselves).
[5] U.S. Const. art. I § 3, cl. 6 (stating that the Senate shall have the sole power to try all impeachments).
[6] William H. Rehnquist, Grand Inquests: The Historic Impeachments of Justices Samuel Chase and President Andrew Johnson 976 (1992).
[8] See U.S. Const. art. I § 2, cl. 5 (stating that the House of Representatives shall have the sole Power of Impeachment); see also U.S. Const. art. I § 3, cl. 6-7 (stating that the Senate shall have sole Power to try all Impeachments).
[10] See Exxon Shipping Co. v. Baker, 554 U.S. 471, 515 (2008).
[11] Nina Totenberg, Kagan Recused from Pending Supreme Court Cases, NPR (Sept. 29, 2010, 4:00 AM), https://www.npr.org/templates/story/story.php?storyId=130205734(noting Justice Kagan’s acknowledgment of a conflict of interest due to her role as Solicitor General).
[12] Lyle Denniston, Analysis: Health Care and Recusal Politics, SCOTUSblog (Nov. 28, 2010, 12:25 AM), https://www.scotusblog.com/2011/11/analysis-health-care-and-recusal-politics/ (discussing the view of many justices that there is a binding obligation to take part in cases unless there was an undeniable reason for recusal).
[13] Roy J. Rodney and John K. Etter, The Last Stand of the Duty to Sit: Recusal in Louisiana, 61 La. B.J. 254, 255 (2014).
[14] See Cheney v. United States Dist. Court, 542 U.S. 367, 391 (2004) (holding in favor of Vice President Dick Cheney and other members of the National Energy Policy Development Group and finding that there was no requirement to assert executive privilege before separation of powers arguments could be considered); see also Justice Scalia and Mr. Cheney, N.Y. Times (Feb. 28 2004), https://www.nytimes.com/2004/02/28/opinion/justice-scalia-and-mr-cheney.html.
[15] See Martinez, supra note 3.
[16] See Laurence H. Tribe, All the Ways a Justice Kavanaugh Would Have to Recuse Himself, N.Y. Times (Oct. 1, 2018), https://www.nytimes.com/2018/10/01/opinion/justice-kavanaugh-recuse-himself.html (noting that that Justice Kavanaugh’s opening statement attacking identifiable groups such as Democrats and liberals, render it inconceivable that he may be able to render justice with respect to those parties).
[17] Lauren Holter, Will Kavanaugh Have to Recuse Himself? Sexual Assault Cases Could be a Sticking Issue, Bustle (Oct. 6, 2018), https://www.bustle.com/p/will-kavanaugh-have-to-recuse-himself-sexual-assault-cases-could-be-a-sticking-point-12178717; Lauren Holter, 5 Supreme Court Sexual Assault Cases That You Should Know About, https://www.bustle.com/p/5-supreme-court-sexual-assault-cases-that-you-should-know-about-12030152 (last visited Oct. 11, 2018) (noting that the Supreme Court only has the power to hear constitutional issues regarding sexual assault cases as states hold the power to construct sexual assault laws within their borders); see Kennedy v. Louisiana, 554 U.S. 407, 412 (2008) (holding that states shall be prohibited from imposing the death penalty for the rape of a child where the crime was not intended to result in the victim’s death); see also Millbrook v. United States, 569 U.S. 50, 57 (2013) (holding that survivors of sexual assault are permitted to sue the government for assaults committed by federal law enforcement officials, including assaults taking place outside of a search, seizure, or arrest).