Even before the U.S. Supreme Court’s announcement that it would review President Obama’s 2010 health-care overhaul, the Patient Protection and Affordable Care Act, the ideological partisans were already in high dungeon. Of particular import was the matter of judicial recusal, i.e., the act by a judge of disqualifying herself from a pending case due to the appearance of bias. Recusal is usually done on the judge’s own motion or upon the objection of either party.
When judges encounter one of a half-dozen or so instances of apparent bias or conflicts of interest, their ethical canons require self-disqualification. 43 states have either a statutory or a constitutional right of recusal for cause at the trial court and the appellate court levels. 25 of those states expressly or implicitly permit the same judge whose recusal is sought to hear and rule on the motion to disqualify herself. 
The same holds especially true for the U.S. Supreme Court where each justice decides whether his or her recusal is warranted. Little wonder, then, that The Alliance for Justice cogently argues that “A Supreme Court Justice’s Recusal Decisions Should Be Transparent and Reviewable.”
So unlike mere mortals, having slipped earth’s surly bounds and“trod the high untrespassed sanctity” the berobbed are blessed with the power to judge their own cause. Such power is almost akin to touching the face of God.
Judging your own cause.
“Although a judge has been appointed by imperial power yet because it is our pleasure that all litigations should proceed without suspicion, let it be permitted to him, who thinks the judge under suspicion, to recuse him before issue joined, so that the cause go to another.” – Justinian Code, 3.1.16 (Justinian I 530)
From the ancient time of Justinian and the “Corpus Iuris Civilis,“ the maxim was “nemo debet esse iudex in propria causa” (no person may judge their own cause). But in practice over time, this axiom has been subsumed ever since Blackstone’s reverential regard first saw daylight in his Commentaries, “The law will not suppose a possibility of bias or favour in a judge who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.”
And this presumption largely holds constant, the burden of proof being on the moving party even though the U.S. Supreme Court itself weighed in modernly to support that “no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.”  But contradictorily, this rule doesn’t apply to itself.
The governing statute on recusal is 28 U.S.C. § 455(a), which establishes that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
Chief Justice Roberts’s Annual Report.
On the last day of 2011, Chief Justice John Roberts issued his 2011 Year-End Report on the state of the federal judiciary. The report was striking in its strong defense of the high court’s ethics.
Concerning recusal, “The Justices follow the same general principles respecting recusal as other federal judges, but the application of those principles can differ due to the unique circumstances of the Supreme Court.” That said, Chief Justice Roberts affirmed his unvarnished support for“the capability of my colleagues to determine when recusal is warranted.”
All well and good but given its “unique circumstances,” rare is the time when recusal is warranted by a member of the nation’s highest court.
What Chief Justice Roberts alludes to as “unique circumstances” is what Justice Antonin Scalia pointed out in his Memorandum In re Cheney v. United States Dist. Court for D.C. It was his denial of that famous Sierra Club recusal motion brought because Justice Scalia had gone duck hunting with a group that included then litigant Vice President Dick Cheney.
When it comes to the U.S. Supreme Court, the problem with resolving any doubts in favor of recusal, Justice Scalia wrote that “The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case.”
The Code of Conduct, Justice Roberts also writes, is a “starting point” – – – not the definitive last word of ethical guidance. Consequently, his year-end report amounts to a reiteration of a revised Justinian maxim or in other words, that the justices “debet esse judex in propria causa” (ought to be judge in their own cause).
So with “Obamacare,” the Right wants Justice Kagan to recuse herself and the Left wants Justice Thomas to recuse himself. Kagan because of her rah-rah interest while part of Obama’s White House and Thomas because of his Liberty Central Inc. Tea Party sipping wife.
And former federal judge and U.S. Attorney General Michael Mukasey says it’s all just so much ado about “chatter.”
Neither should be disqualified from considering the case, he says, since the concerns raised by both sets of idealogues are so frivolous they can’t, for example, compare to the kinds of civil rights cases decided every day by judges of all races, creeds and genders and which when bias challenges are raised in those instances “far deeper than any purported rooting interest in a case, have been swatted down so often that a law clerk of even middling competence could prepare an opinion in less than half a day for a judge facing such a challenge.” See Michael B. Mukasey: “The ObamaCare Recusal Nonsense.”
But Judge Mukasey also parses his argument too finely when he opines on the standard for determining when impartiality might “reasonably be questioned.”
It isn’t based as he narrowly argues on a “a person of reasonable judgment, aware of all the facts, as well as how courts function, would decide.” [underlined emphasis added]. No, under Microsoft Corp. v. United States, 530 U.S. 1301, 1302 (2000), the inquiry is “made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.” Knowledge of “how courts function” isn’t a part of it.
And then from his sanctified, rarefied perch, Judge Mukasey further posits the unsupported non-argument that a more detailed review of recusal rules or a requirement that the justices review one another’s recusal decisions “will not assure greater clarity, nor would public confidence be improved.” Really?
Arguing for an ounce of prevention.
So what to make of all this? A court’s overriding concern must be to safeguard public confidence in the judiciary. To that end, it is nigh time for new recusal procedures like the kind advocated recently by Maine Law School Professor Dmitry Bam.
At “Making Appearances Matter: Recusal and the Appearance of Bias,” he argues for“ex ante [before the event] regulation of judicial conduct and judicial selection that creates the appearance of bias in the first place.”
And departing from jealously guarded judge-made rules governing recusal, Professor Bam wants to take power out of the hands of individual judges in individual cases. Instead, he wants legislators to “consider appearances ex ante to prevent the damage to the judiciary from arising in the first instance. This means that legislators must regulate judicial selection (including judicial elections) and judicial conduct, as well as extrajudicial conduct, with an eye towards potential future recusal.”
Along related procedural deficiency lines, also see “The Elusive Goal of Impartiality” by Professor Debra Lyn Bassett, Southwestern Law School, and Professor Rex R. Perschbacher, UC Davis Law School.
 “The Legislature Must Save The Court From Itself?:Recusal, Separation of Powers, and the Post-Caperton World,” Drake Law Review, Volume 58, Number 3, Spring 2010, 765.
 With apologies to “High Flight“ by John Gillespie Magee, Jr