Amar on recusals


When people gather with their various placards outside the Supreme Court this spring as it hears Newdow's complaint against "under God" in the pledge, there will undoubtedly be several news stories about Justice Scalia's decision to recuse himself. Indeed, unless the public feels fairly sure the court will rule against Newdow (as The New Republic seems certain it's clear cut patriotic, not religious) there will be a tremendous anticipation in the press that the decison might come down 4-4.

Thus, Scalia's recusal is a big story- and Professor Amar covers it well. In fact, he argues against the recusal.
Here's my favorite bit:

There is a difference between an open mind and an empty mind, and impartiality requires only the former. All that we should ask of a judge -- be it in a speech, a law review article, or in a published opinion -- is that he do nothing to undermine the presumption that he is open to revisiting his own views if there are new or better-packaged arguments than he has seen in the past. If a judge satisfies this standard, then, in my view, he is not acting in a closed-minded and biased way, and there is thus no reason for him to recuse himself.

And to boot, Amar throws in some ideas about the judicial nominee process- and that Senators ought to be able to ask potential judges about their positions on potential issues. Read the article- it makes a strong case for honesty and reasonableness in reagrds to the role of ideology (in the most non-threatening sense of the word) and where such ideas are expected of judges and where they ought to demand recusal.