Jamie Raskin’s Absurd Theory of Forced Judicial Recusal

T hey say that you can’t build a strong argument on weak foundations. You can certainly build a weak argument on weak foundations, though, and here to exploit that loophole in the aphoristic canon comes one Jamie Raskin, a Democratic representative from Maryland who began his career in Congress by engaging in a failed attempt to challenge Donald Trump’s victory in the election of 2016, and who is now trying to save the republic by toying with the makeup of the Supreme Court.

Duly impressed by the concrete-pouring efforts of his fellow progressive Democrats, Raskin has taken to the pages of today’s New York Times to build the practical case for forcing Justices Thomas and Alito to recuse themselves from any Supreme Court cases that relate to January 6. Hitherto, Americans have had to rely upon devastating emotional arguments in advance of this proposition — arguments such as “Alito’s wife sometimes flies flags” and “Thomas is too close to his spouse”— and Raskin has sensed that if he and his team of provocateurs are going to prevail, they’ll need something sturdier than that. The result is a 2,000-word brief in favor of giving Merrick Garland control of Article III whenever the Democratic Party considers it imperative.

“Everyone,” Raskin writes, “assumes that nothing can be done about the recusal situation.” But this, he says, is “wrong.” In fact, there exists a way “to force Associate Justices Samuel Alito and Clarence Thomas to recuse themselves from the Jan. 6 cases that are before the court” — and, indeed, to force any other justice to recuse from any other case in which one might think that one has identified a conflict. The mechanism, per Raskin is:

The U.S. Department of Justice — including the U.S. attorney for the District of Columbia, an appointed U.S. special counsel and the solicitor general, all of whom were involved in different ways in the criminal prosecutions underlying these cases and are opposing Mr. Trump’s constitutional and statutory claims — can petition the other seven justices to require Justices Alito and Thomas to recuse themselves not as a matter of grace but as a matter of law.

As for that law:

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.

“Many people,” Raskin admits, do not think that this law applies to the Supreme Court. But “all of them are wrong.” Rather, “the constitutional and statutory standards apply to Supreme Court justices” because the law contains the word “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.

Ergo, Justices Alito and Thomas — and, hell, anyone else who stands in the way — can be made to recuse themselves every time the New York Times throws a fit.

Or . . . perhaps not. Raskin is, of course, correct when he observes that “the only justices in the federal judiciary are the ones on the Supreme Court,” and he is also correct to note that the Supreme Court has voluntarily adopted the terms of 28 U.S.C. Section 455 as its own guide. But it does not follow from this that the Court can be forced to adopt those terms, or that it was obliged to adopt those terms, or, heaven forfend, that the Justice Department or the attorney general have some phantom power to remove whichever subgroup of Supreme Court justices they find inconvenient to a given case. Nor does it follow that other members of the Court have any interest in his proposal. Throughout, Raskin merrily assumes that, if his novel theory gains favor within the Democratic Party, the justices of the Court, acting as a body, will happily start compelling their colleagues to recuse from cases if ordered to do so by the AG. But there is no precedent for their doing so, and there are centuries of precedent to the contrary. Historically, individual justices have always made their own recusal decisions, and, historically, their colleagues have accepted them. Does Raskin expect us to believe that they’ve all been wrong, too?

“This recusal statute,” Raskin writes, “is Congress’s command, binding on the justices, just as the due process clause is.” But here he shows his skipped step. When evaluating any legal claim, the first inquiry is always whether the law applies to the subject at hand. Whatever they might say, California’s laws do not apply in Wyoming. However desirable they might be, the rules of the Senate do not apply to the House. Tempting though such a usurpation undoubtedly is, the president’s pardon powers cannot be exercised by Congress. In his essay, Raskin refers to “Congress’s command” and “the due process clause” as if they were the same thing. But they are not — and, in the realm of separation of powers, that can matter enormously. There is no doubt that “the due process clause” applies to the Supreme Court, because the due-process clause sits within the same supreme law that created the Supreme Court (although the suggestion that the due-process clause magically hands the responsibility for recusal over to the other branches is bizarre). But congressional legislation that is “triggered” by appointed members of the executive branch? That’s another kettle of fish.

In an attempt to get around this distinction, Raskin writes that Congress’s recusal statute has been applied many times to judges “in lower courts.” That is true. What Raskin fails to acknowledge, however, is that, unlike the Supreme Court, those “lower courts” were created by — and can be altered or abolished by — that very same Congress. To complete this conflation, Raskin then refers to “judges throughout the federal system,” as if what is true of the lower courts must be true of the highest court in the land. It’s not. Having been created by Article III of the Constitution, rather than by Congress, the Supreme Court occupies a different place within our system. Naturally, Congress has some power over the Supreme Court — it must approve or reject new justices, it can impeach justices, it determines the Court’s overall size, etc. — but it cannot abolish the Court, and, as with the presidency, it cannot interfere with the Court’s core constitutional duties, either. That, as Raskin concedes, the recusal statute has been applied in the lower courts but not at the Supreme Court is not an oversight, but an indicator.

Astonishingly, Raskin tries to get around this obvious problem by reversing it. For the Supreme Court to ignore the recusal act, he writes,

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.

This is backwards. It is precisely because of the separation of powers that Congress’s ability to pass laws that superintend the behavior of the Supreme Court is limited. Congress is, and ought to be, the most powerful branch within our system; the three are not, as Woodrow Wilson had it, “co-equal.” But if Raskin’s contrivance were to be adopted, Congress would not merely be the most powerful branch; it would be the only branch. Essentially, one could apply Raskin’s “trespass” rule to anything. Congress could pass a law restricting what sort of bills the president is allowed to veto; the president could appeal to Article II; and the Raskin Rule would oblige us to conclude that the president was “trespassing” on the separation of powers by “essentially saying he has the power to override a congressional command.” Congress could pass a law ordering the president to fire his secretary of defense; the president could note that the secretary was approved by the Senate; and the Raskin Rule would oblige us to conclude that the president was “trespassing” on the separation of powers by “essentially saying he has the power to override a congressional command.” As applied to Article III, this notion would eventually undermine the very principle of judicial review, for if the Supreme Court is not permitted to override Congress when Congress’s actions fall outside the permission structure of the Constitution, then the Supreme Court has been rendered useless. Indeed, taken literally, the Raskin Rule would permit Congress to respond to every Supreme Court decision limiting its authority by issuing a “congressional command” to the contrary and calling it a day. Typically, one is obliged to extrapolate out to the bottom of the slippery slope. Here, we start on our backs. Raskin’s case for recusal, you will recall, is that Justice Alito’s wife chose to fly two flags at their houses. If the attorney general is able to force recusal over that — and “force” is Raskin’s word, not mine — then the attorney general will have been made into the Supreme Court’s de facto head of personnel, and the Supreme Court will disappear.

Which is all to say that, for all its pomp and pretension, Raskin’s piece is a perfect counterpart to the abject fluff on which it is built. We are informed prior to the essay’s start that Raskin “taught constitutional law for more than 25 years.” If so, then one must conclude that he has chosen to sacrifice his credibility for his cause. From start to finish, this entire flap has been a preposterous, astro-turfed bullying campaign that, far from yielding an earnest “groundswell of appeals,” has been tailored, retailed, and absorbed solely by the Democratic Party and its avatars in the press. That its architects have moved from trying to stir up the rabble to trying to hand control of the Court over to the White House might look at first glance like an escalation, but, in reality, it is a resignation. The whole thing is dust — and they know it.