Clear Standard

Early in the hearing KENNEDY told OLSON:
“But your -- your standard of -- of impropriety doesn't, it seems to me, give sufficient -- or "unacceptable risk of bias" doesn't give sufficient guidance to the courts to implement this rule unless it's just -- it's just going to be one case. Now, I know the law evolves on a case-by-case system. I understand that, but it doesn't seem to me that the standard you offer us is specific enough. “

ROBERTS: "Probability" is a loose term. What -- what percentage is probable … What about the United Mine Workers. If they give a contribution to somebody's campaign, is that judge then recused in every labor case? 

SCALIA: Of course the appearance standard is -- is wonderfully ratchetable. … we go down and down and down. And I -- I personally don't favor a constitutional rule that is a sliding scale like that.

SCALIA: You really have no test other than probability of bias. We can't -- we can't run a system on -- on such a vague standard.

Others disagreed sharply.

JUSTICE STEVENS: Why is it any more unworkable than probable cause in a Fourth Amendment case?

BREYER: If the court just says that certain cases are outside the envelope and violate the Due Process clause, “Now, what terrible mess will the Court get into if they write just that?”

Late in the hearing, KENNEDY said:
“It does seem to me that the appearance standard has … much to recommend it. In part it means that you don't have to inquire into the actual bias; it's -- it's more objective. Now, of course it has to be controlled, it has to be precise. But … I do have that inclination.”
 

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