Judicial Recusal and the Search for the Bright Line

Abstract

Justice Stevens also rejected government's argument that because petition ers' hearing before panel was not fundamentally unfair and did not impugn integrity or public reputation of court, and because petitioners failed to lodge an initial objection to panel's composition, relief was not appropriate under plain error review. Justice Stevens suggested that invalid composition of panel was not cured simply by fact that Article IV judge was well qualified and proceedings were fair. Id. at 81. Indeed, if all parties below had requested an Article IV judge, that judge's mere presence rendered panel invalid. The gov ernment's final argument was that court-of-appeals decision should be upheld because 28 U.S.C. 46(d) allows two judges to constitute a proper quorum to legally conduct business. This claim was also rejected on ground that statute requires three judges in first instance; that is, it contemplates a situation where, should a third judge die or be disqualified, other two judges could finish court's busi ness, not a situation in which a properly composed panel did not exist ab initio. Although agreeing that Article IV judges cannot sit on a U.S. Court of Appeals, Chief Justice Rehnquist and three other justices dissented as to issue of remedy. Because petitioners had failed to make a timely objection to panel's composi tion, plain-error doctrine allowed court to vacate petitioner's sentences only if the error 'seriously affect[s] fairness, integrity, or public reputation of judicial proceedings.' Id. at 84. The chief justice noted that petitioners had never suggested that territorial chief judge was biased or incompetent, and, consequently even assuming that error affected petitioners' substantial rights, it simply did not affect fairness, integrity, or public reputation of judicial proceedings. Id.