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Recusal � A Judicial Anomaly During her 22 years on the U.S. Supreme Court, Justice Sandra Day O’Connor has recused herself from participating in 675 cases, a yearly average of 31. See “ Decoding High Court Recusals,” March 1, 2004, Legal Times, a sister publication of the Law Journal. Justice Antonin Scalia, by comparison, has recused himself 196 times in his 17 years on the bench, a yearly average of 12. Justice Stephen Breyer holds the record. He has recused himself 382 times in 9 years, a yearly average of 42. Every justice has logged over 100 recusals except Ruth Bader Ginsburg, who recused herself only 65 times in 10 years. Recusals for all sitting justices total 2,816. That number is startling, not because it is large, but because of the absence of public records reflecting the reasons for any of the recusals. Indeed, the Times was obliged to translate the words “took no part,” appearing next to the names of justices on orders and opinions, as meaning “recused.” In a judicial system based on reason, the Supreme Court’s recusal rules are an anomaly. A lawyer seeking the recusal of a particular justice must apply to that justice, whose decision, without reasons and without a record, is final. No review is available. How does one get a recusal motion before the Court itself? The answer seems to be that no litigant can. The need for reasons is obvious. Without them the recusal decision is arbitrary. Justice Felix Frankfurter, as quoted in Aldisert, The Judicial Process, p. 8 (2d Ed. 1996), said it well: [F]ragile as reason is and limited as law is as the expression of the institutionalized medium of reason, that’s all we have standing between us and the tyranny of mere will and the cruelty of unbridled, undisciplined feeling. It is not the high number of silent recusals as much as the unknown number of refusals to recuse that is troubling. This aspect of the problem has been highlighted by the ongoing public controversy (an exception to the usual silence) over Scalia’s failure to recuse himself from participating in a case in which his good friend, Vice President Dick Cheney, with whom the justice recently went on a free duck-hunting trip, is a party. Numerous editorials and articles have called for his recusal. We commend Scalia’s decision to issue a written opinion in support of his decision not to recuse himself. Whether or not one agrees with his reasoning and conclusions, hearing them made public is a plus to the administration of justice. Recusals, taken or rejected, have significant consequences for litigants in a Supreme Court that frequently decides cases by 5 to 4 votes. The American Bar Association has appointed an 11-member commission to study the model code of judicial ethics, which, while not binding on the Supreme Court, is influential. The commission should give the recusal problem priority consideration. Horse Sense A Superior Court judge is permitting a plaintiff to sue for negligent infliction of emotional distress resulting from injuries to her horse. The horse in Morrisroe v. Moriarty, Superior Court of New Jersey, Law Division, Sussex County docket number L-600-01, was shipped to New Jersey from the plaintiff’s former home in Indiana and allegedly injured itself when forced to jump from a trailer upon arrival. Its injuries were aggravated by improper treatment at the stable where it was boarded and consequently, it could no longer be ridden. It was retired to pasture but was not destroyed. The devastated owner had contemplated (but did not commit) suicide and is now seeking damages for her emotional ordeal. The bonds of affection between human and animal � let alone between a teenage girl and her horse � have a long and celebrated history. But this case does not present the best argument deciding that the loss of an animal justifies recovery for emotional suffering. The owner has not lost the companionship of her horse; she has lost its use as a mount. The emotional distress claim should have been dismissed. Presumably, the complaint includes a claim for loss of the animal’s potential economic value as a contender in the show ring, which is the only basis for a viable tort claim in this instance and which is supported by New Jersey case law. Hyland v. Borras, 316 N.J. Super. 22 (App. Div. 1998). We yield to no one in our respect for the value of animal companionship; indeed, we number ardent horse-lovers among our members. However, we fail to see the advantage of unbridled expansion of noneconomic damage claims. Banishing the Spoiler Concept Ralph Nader’s announcement of his independent candidacy brings back memories. In 1980, John Anderson ran for president as an independent after abandoning the Republican primaries. He was promptly labeled a spoiler. Anderson then became interested in how we can structure our electoral system to accommodate an increase in choices and the better dialogue and greater voter participation coming with those choices without risking election of a candidate that most voters do not want. He came up with a simple, reasonable solution: instant runoffs. Unlike most democracies, our states have set up presidential elections so that the candidate with the most votes wins all electoral votes, even if opposed by a majority of voters. That makes third-party or independent candidates “spoilers” if they split a major party candidate’s vote. Instant runoffs are already used for top offices in London, Ireland and Australia, and in Utah and California for key elections. Any state could adopt this simple reform immediately for all federal elections, including the presidential race. Legislation backing instant runoff voting has been introduced in nearly two dozen states, and former presidential candidates Howard Dean and John McCain endorse the system. In instant runoff voting, people vote for their favorite candidate, but also can, if they wish to do so, indicate alternate choices by ranking their preferences as 1, 2, 3. If any candidate receives a majority, that candidate wins. If not, the candidate with the fewest votes is eliminated, and a second round of counting occurs automatically on the computer. In this round, your ballot is counted for your top-ranked candidate still in the race. Rounds of counting continue until there is a majority winner. With instant runoff voting, we would determine a true majority winner in one election and banish the spoiler concept. Voters would not have to calculate possible perverse consequences of voting for their favorite candidate. They could vote their hopes, not their fears. Under this system, progressives who like Nader but worry about President George W. Bush could rank Nader first and John Kerry second. Similarly, libertarian-minded conservatives upset with the Republican party’s positions on government spending could rank the Libertarian nominee first and Bush second. Rather than contributing to a major party candidates’ defeat, these candidates instead could stimulate debate and mobilize new voters. Our primitive voting system is this year’s biggest spoiler. Instant runoff voting would give us a more participatory, vital democracy, where candidates could be judged on their merits and the will of the majority would more certainly prevail. We believe our New Jersey Legislature should give serious consideration to John Anderson’s proposal for instant runoffs for all elections in New Jersey.

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