One of the commentators to my prior post on the difficulties of proceeding before the Supreme Court with the complaint issued by the Judicial Commission against Justice David Prosser thinks the matter easily resolved by the so-called common law "Rule of Necessity." In a case called Will v. United States, the United States Supreme Court held that a district court could hear a challenge to a law that reduced the compensation of all district judges. Although 28 U.S.C. sec. 455 required disqualification of a judge in any matter "in which his impartiality might reasonably be questioned or where he has a financial interest in the subject matter in controversy or is a party to the proceeding," the Court concluded that Congress had not intended to repeal the common law rule of necessity. In it's view, an interested judge could hear the case because there would be no other judge to hear it.
It's a fair point and the idea had occurred to me, but I don't think it works here. First, whether Wisconsin law abrogated the rule of necessity is a point on which Will does not control. Second, and more fundamentally, there is a difference between a rule that allows a judge with an interest to hear a case and one that requires a judge who has been a participant to the events at issue to hear a case. Being a witness and being a judge who must evaluate the witnesses are fundamentally incompatible roles.
We can imagine that a judge might set aside his personal interest, but how is he to set aside what he saw? Recusal rules occasionally do make it impossible to get an outcome and, in the unusual circumstances of this case, that may well be what will happen.
Consider the alternative. At best, we are going to have a proceeding in which the extrajudicial impressions formed by the members of the Court will control the outcome. This is inconsistent with judicial function and, even if permitted, something of an empty gesture. Judges - like any other human being - are not going to disbelieve their own eyes because someone else has settled upon a different version of events.
In this case, the rule of Necessity is trumped by the fact of Impossibility.
I continue to believe that this should have been - and could have been - handled in another way.
So what to do now?
The best outcome would be for the parties to reach some creative resolution. I don't think that Justice Prosser will agree to a public reprimand, but perhaps the matter could be resolved by some type of conciliatory statement and commitment to civility - ideally joined in by all members of the Court. But this may be unlikely.
The second best would be to raise the issue of disqualification promptly. If the Court is not inclined to hear the case, then it would be best for this to happen before there is discovery and a evidentiary hearing, neither of which may be helpful or edifying.
The worst outcome would be full blown litigation. I can imagine discovery into the source of leaks to the press and into the background of the participants which would not be helpful to the Court's image or to its interpersonal dynamics - all for little or no gain.
I, for one, hope that can be avoided. But maybe it can't.