Related: Bashman ArchiveAlmost immediately after last week's oral argument in the Exxon Valdez case, some veteran journalists began to speculate that the U.S. Supreme Court could divide 4-4 over whether the punitive damages awarded in that case should be reduced or set aside entirely. The possibility of a tie vote arises because Justice Samuel A. Alito Jr. is recused due to his ownership of stock in Exxon.
And on Monday of this week, the U.S. Supreme Court affirmed by an equally divided vote the decision under review in Warner-Lambert Co. v. Kent, vividly demonstrating that recusal-based tie votes are a fact of life at the U.S. Supreme Court whenever an even number of judges remains to decide the case. However, because recusal-based tie votes occur infrequently at the U.S. Supreme Court, little if any attention is focused on whether to implement a solution that might avoid them altogether.
My proposed solution to avoiding recusal-based tie votes at the U.S. Supreme Court is an approach that many state courts of last resort already have adopted. In those state high courts, if a justice is recused, the resulting vacancy is filled by a non-recused judge from one of the state's intermediate appellate courts. Having the court back at its full complement of justices makes a tie vote extraordinarily unlikely to occur and thus ensures that a case deserving of review in the jurisdiction's highest court can produce a definitive outcome on the questions presented.
At the two levels of the federal judiciary below the U.S. Supreme Court, judges regularly fill in for one another due to recusals or other unavailability. Federal district judges often sit by designation on federal appellate panels -- and federal appellate judges regularly sit by designation on appellate panels outside of their home circuits. On occasion, federal appellate judges also sit by designation on federal district courts. It is even possible for U.S. Supreme Court Justices to sit on federal intermediate appellate court panels, as justices regularly did when riding circuit earlier in the nation's history.
What never occurs, however, is lower court judges sitting by designation on the U.S. Supreme Court. But the U.S. Congress certainly could enact legislation that would allow for a recused U.S. Supreme Court justice to be replaced by a randomly selected lower federal court judge who had no recusal issues. The solution that I would propose would have the replacement for a recused U.S. Supreme Court Justice be randomly selected from among all non-recused federal circuit judges in regular active duty.
If the case in which a justice is recused reaches the U.S. Supreme Court from a federal appellate court, I would exclude from the random selection process all federal appellate judges based in the circuit from which the case arose. This would eliminate any possibility that the replacement judge might be influenced by a desire to improve his or her circuit's affirmance rate before the Supreme Court. It would also guard against the possibility of the judge's having had any earlier involvement in the case, such as while sitting on a motions panel or when considering a petition for rehearing en banc.
I am aware that a number of persuasive objections could be raised in response to my proposal. Perhaps the most persuasive would be that cases decided by a 5-4 margin, where a visiting judge was in the majority, might have come out the opposite way had none of the U.S. Supreme Court's justices been recused. There is no denying the truth of that objection, but at least such a 5-4 ruling would afford a definitive resolution of the issues that were deserving of U.S. Supreme Court review.
Others might object to this proposal because of the possible inconvenience to remotely based judges expected to fill in for a recused justice in a given case. However, I would hazard a guess that, regardless of the inconvenience, most federal appellate judges would be more than happy to have the experience of serving as a U.S. Supreme Court justice by designation. Nevertheless, it might make sense to allow any federal appellate judges who did not want to be considered to opt out of the process at the outset of each U.S. Supreme Court term.
Another objection that I anticipate involves the concern that allowing participation by a judge based outside the U.S. Supreme Court might increase the possibility that the outcome could become public before the ruling was officially announced. I personally do not believe this objection has much merit. Federal appellate judges are in the business of deciding cases whose outcome must remain secret until the decisions are officially released. It would not be much more difficult for those judges to ensure that the result in any case where they sat by designation with the U.S. Supreme Court was guarded with at least the same level of secrecy.
I would limit my proposal to Supreme Court cases in which a justice is absent due to the need to recuse or any other temporary unavailability. For several reasons, I would not endorse using this proposal as a way of filling the vacancy created by a justice who has permanently departed from the Court.
When a justice permanently departs the Court, whether due to death, resignation, retirement, or disability, it is important for the president and the U.S. Senate to achieve the confirmation of a replacement justice in a timely manner. I would not recommend my proposed method for use on a case-by-case basis where a permanent departure from the Court has occurred, because it would diminish the pressure on the Senate to promptly confirm a replacement. Moreover, when cases argued after a justice's departure stand to produce a tie vote, the U.S. Supreme Court commonly withholds a decision so that the case can be reargued once a new justice is confirmed.
A justice's recusal or temporary unavailability can arise from a variety of reasons, but there is no reason why it should pose the risk of precluding a definitive outcome in a case that has attained U.S. Supreme Court review. Congress should consider enacting legislation that would allow the U.S. Supreme Court to operate at full strength even when one or more justices must recuse from deciding a case on the merits. Allowing randomly selected federal appellate judges to sit by designation offers a workable solution to this quandary.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at email@example.com. You can access his appellate Web log at http://howappealing.law.com/.