Recuse

[Dr. Goodword]

• recuse •

Pronunciation: ri-kyuz • Hear it!

Part of Speech: Verb

Meaning: 1. To disqualify from participation in a decision because of personal prejudice or interest in a particular outcome. 2. (Religion) To reject, refuse to comply with.

Notes: This verb is used mostly reflexively, i.e. to recuse oneself, because in a legal action it is usually done voluntarily or under pressure. The noun for this verb is recusal. The adjective for recuse is recusant, but it fits only to the second sense in Meaning above.

In Play: This verb is used mostly in the non-religious sense above: "The defense attorney asked for the judge to recuse himself because he was married to the prosecutor." This word is highly relevant to the political situation in the US in 2017: "Suspicions are growing with the number of Republican politicians recusing themselves and resigning from the various investigations of the Trump-Russian relationship."

Word History: Recuse was borrowed from Latin recusare "decline, refuse, reject. be reluctant to" via French. It is based on re- "again, back, undo" + causa "reason, interest, (court) case" + -are, a verbal affix. This word has been used in courts based on the Roman legal system to reject or challenge a judge or juror as disqualified to act because of bias. The prefix may well have come from a metathetical form of PIE wert- "to turn, in other words, wret-. The case is supported by the fact that before words beginning with a vowel, it become red-: redact, redolent, and redundant. [d] is a voiced variant of [t], i.e. pronounced while vibrating the vocal cords. However, the evidence ends there. There is absolutely no evidence suggesting where causa originates. (I cannot recuse myself from offering Rob Towart my sincerest gratitude for recommending today's most topical Good Word.)

[George Kovac]

The mechanics of recusal vary, and say a lot about how we value and contain conflicts of interest. Examples of recusal--or refusals to recuse--often inflame passions and reveal what we think about objectivity, fairness and appearances in public decision-making.

For non-judicial posts, it seems the custom is that the official in question makes that initial decision. Presumably that person's boss has the authority to overrule if the boss thinks the person should have recused himself (or herself). But if the principal and his boss both hold political offices and view the demand for recusal as a political ploy... well you don't always get objective or consistent decisions.

In the court system, a party to a lawsuit can ask a judge to recuse himself, or the party can petition the next appellate level to order recusal if the trial judge refuses. That system works fairly well and insures that the judicial system maintains the appearance of impartiality. Bias or financial or personal conflicts of interest are the usual reasons to ask for recusal. Recusal does not imply that a judge would in fact be biased. The standard is whether too great an opportunity exists for conflict of interest because it is the appearance (see, for comparison, "Caesar's wife, purity of...") of impartiality that must be maintained to insure public confidence in the judiciary. That is a high standard and is the correct standard which underpins the integrity of the judiciary.

But a special problem in recusal occurs at the US Supreme Court level. There is no higher court to appeal to. The tradition is that each justice rules on his/her own recusal petitions, and there is no appeal from that decision. Generally recusal opinions at the Supreme Court level are fairly made and few decisions spark much outcry. For example, justices who were recently members of the presidential administration generally voluntarily recuse themselves from hearing any lawsuits involving legislation or policy decisions they may have had a hand in while working for their former boss. Financial and personal relationships may also indicate grounds for recusal. Traditionally a justice rules one way or another on his own recusal, but then issues no detailed opinion. There is a good reason for that custom. To enumerate reasons pro or con would only extend the controversy and debate--and in this case the justice himself is the subject matter of the controversy so it is hard to write convincingly and objectively. Effectively the justice would be a lawyer representing himself, disregarding the adage about having a fool for a client.

But Justice Scalia did not always think such rules and customs applied to himself. He famously refused a petition to recuse himself in a case involving Vice President Dick Cheney, a man with whom, at the host's, he had recently gone duck-hunting with several oil executives. Had Justice Scalia merely refused to recuse himself, that would have been that. His critics would have continued to complain, but in a vacuum. Instead, Justice Scalia published 21 embarrassing and whiney pages defending his own actions in a written opinion. see http://news.findlaw.com/wsj/docs/scotus ... 4jsmem.pdf
The result was that he opened himself up to deeper criticism for the self-serving and often weak reasoning he employed--including some nonsense about buying a cheaper round trip air plane ticket with the intent of using only half of it to save money because he was offered only one-way transportation on his host's private jet... While such personal thrift is understandable, buying a round trip ticket under those circumstances was technically a violation of then current aviation law--not a great argument for a Supreme Court justice to make in his own defense.

Mies van der Rohe famously said of architecture that less is more; that rule would also apply to words in Supreme Court recusal decisions.

[MTC]

Judges aren't the only ones who recuse themselves because of conflicts of interest. Members of the Executive Branch do too. It has been suggested (only half seriously) that Trump recuse himself from the presidency because of the many conflicts of interest his global business interests create. Trump's defenders will argue federal conflict of interest laws which require recusal do not apply to the president himself or herself. But, to quote Dickens in Oliver Twist: "If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass - a idiot". If conflict of interest laws and the remedy of recusal apply to the president's subordinates in the Executive Branch, why shouldn't they apply with even greater force to the president himself or herself? You decide.

While you are deciding, you might find helpful an 18 page report by the Congressional Research Service entitled, "Financial Assets and Conflict of Interest Regulation In The Executive Branch."
The report includes a section on "Recusal from Personal and Substantial Participation."

https://fas.org/sgp/crs/misc/R43365.pdf