09.29.10

Leahy Proposes Bill To Allow Retired Justices To Sit On Court By Designation

Legislation Would Give Active Justices Choice To Designate Retired Justices

WASHINGTON (Wednesday, Sept. 29, 2010) – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) Wednesday introduced legislation to permit retired Supreme Court justices to sit on the Court by designation in cases where an active justice has recused.

Such legislation was first suggested to Leahy by Justice John Paul Stevens, in a meeting earlier this year with Leahy, before Stevens announced his retirement plans.  Under the proposed bill, the active justices of the Supreme Court would be permitted to vote to designate a retired Supreme Court justice in a particular case in which one or more Justices have recused themselves. 

Congress has previously given the Chief Justice of the Supreme Court the authority to designate and assign retired Supreme Court justices to cases in any federal circuit.  However, the law does not provide any authority permitting a former justice to sit by designation on the Supreme Court – the court to which he or she was confirmed.

“Retired Justices may be designated to sit on any court in the land except the one to which they were confirmed,” said Leahy.  “The bill I am introducing today will ensure that the Supreme Court can continue to serve its essential function.  In recent history, Justices have refused to recuse themselves and one of their justifications has been that the Supreme Court is unlike lower courts because no other judge can serve in their place when Justices recuse.”

Under Leahy’s proposed legislation, the Court would have the authority to designate and assign former Justices to sit on cases where an active justice has recused himself or herself.  The legislation requires a majority of active Justices to vote to designate and assign a retired Justice in such cases.

The proposed legislation would also allow the Court to preempt potential 4:4 split decisions, in which the decision of a lower court stands. 

“When a Justice needs to recuse from a matter under the rules that govern judicial conflicts of interest, the Supreme Court may be rendered ineffective, because there are no provisions in place to allow another to be designated to sit in his or her place,” said Leahy.  “Given the Court’s recent rash of 5:4 rulings, the absence of one Justice could result in a 4:4 decision.  In that scenario, the Supreme Court cannot serve its function and the lower court decision stands.”

The text of the legislation is available upon request.

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