Scalia's (non)recusal

Michael Zimmer zimmermi at
Tue Feb 17 13:25:23 PST 2004

The Chief Justice's statement comports with my understanding.  But just
because Congress does not have the power to mandate recusal by a Justice in
a case does not mean that it lacks the power to impeach a Justice for
failing to recuse himself.  As then-Congressman Gerald Ford indicated,
impeachment is what a majority of the House and two-thirds of the Senate
say it is.  He was speaking, as I recall, in the context of a move to
impeach Justice Douglas. The argument would be that the failure to recuse
by one Justice  besmirched the integrity of the whole Court.  That Congress
could impeach, however, does not mean that it should.

Michael J. Zimmer
Professor of Law
Seton Hall Law School
One Newark Center
Newark, NJ 07102
973.642.8194 fax

                      "Ana Maria                                                                                                            
                      Merico-Stephens"              To:       "Bryan Wildenthal" <bryanw at>, <conlawprof at>             
                      <stephens at law.arizona.        cc:                                                                                     
                      edu>                          Subject:  RE: Scalia's (non)recusal                                                     
                      Sent by:                                                                                                              
                      conlawprof-bounces at lis                                                                                                
                      02/17/04 12:35 PM                                                                                                     

I do not often comment on this list.  But I thought you may find
interesting Justice Rehnquist's comments on this subject last week.  He
teaches a two-week course here every year.  During a faculty lunch in his
honor, he explained (without being asked) that in his view the issue of
recusal should be a personal decision of each Justice/judge.  His belief is
that neither Scalia's colleagues nor Congress had the power or right to
mandate recusal.  Interesting . . .

Ana Maria Merico-Stephens
Associate Professor of Law and
   Affiliated Professor of Latin American Studies
The University of Arizona
James E. Rogers College of Law
P.O. Box 210176
Tucson, Arizona  85721-0176
Bio: :

-----Original Message-----
From: Bryan Wildenthal [mailto:bryanw at]
Sent: Monday, February 16, 2004 10:49 PM
To: conlawprof at
Subject: Scalia's (non)recusal

Dear ConLawProf colleagues,

I drafted the below for distribution to the list, then decided that it
wasn't closely enough tied to Con Law and so just circulated it to my
colleagues, one of whom pointed out that recusal is indeed of central
concern to Con Law.  "Denial of the right to an impartial judge violates
Due Process principles found in the Fifth and Fourteenth Amendments to the
federal constitution as interpreted by the United States Supreme Court in
Aetna Life Insurance Co. v. Lavoie (1986) 475 U.S. 813, 825 [106 S.Ct.
1580, 89 L.Ed.2d 823]; Gibson v. Berryhill (1973) 411 U.S. 564, 571 [93
S.Ct. 1689, 36 L.Ed.2d 488]; In re Murchison (1955) 349 U.S. 133, 136 [75
S.Ct. 623, 99 L.Ed. 942]; and Tumey v. Ohio (1927) 273 U.S. 510, 535 [47
S.Ct. 437, 71 L.Ed. 749]." [with thanks and credit to my colleague Marjorie
Cohn for the citations] Also, I would add (as noted below) that Scalia's
non-recusal in the Cheney case will arguably amount to an impeachable
offense, which also raises constitutional concerns.

I guess I have had this issue on my mind, since Justice Scalia visited my
law school last Friday (unfortunately, I had prior plans to be out of town
and so missed it).  I haven't yet heard if anyone here asked him about the
recusal matter.

Does anyone else agree with me that current recusal doctrine, as Scalia is
applying to himself, seems quite bass-ackwards?

Scalia has chosen to recuse himself from the pledge-of-allegiance case
because he blurted out prematurely, in public, a comment indicating his
ultimate view on the merits (as if any of us had any doubts how he would
rule in that case!).  I tend to think that was unwise and injudicious on
his part, but I seriously do not think he should have to recuse himself.
He should just apologize for it and watch his tongue in the future.
Everyone has opinions, and opinions by their nature can change.  We don't
seriously pretend to expect or require that any judge approach any case
with a completely, or even mostly, open mind.  Indeed, it would be rather
scary and undesirable if they did.  Judges (and people generally) tend to
develop strongly held principles, that apply with a fair amount of
predictability to future cases and controversies, and that's mostly a good
thing.  No one has suggested that Scalia has any financial interest in the
pledge case, nor any personal tie to any litigant -- whatever feelings he
has about it are purely based on the sheer principled merits of it.  Though
I wish he didn't have his vote on the Court, I think he's entitled to cast
it as long as he holds office.

And yet, as the article below indicates, Scalia is resisting calls to
recuse himself in the Cheney case.  This despite the now undisputed fact
that he is a close personal friend of Cheney, was personally invited to fly
with Cheney to the Louisiana hunting trip lasting several days (overall
treatment that Scalia alone seems to have gotten on this trip, among other
Cheney friends), and the free transportation provided had a very
considerable financial value (surely several thousand dollars at least --
imagine the cost of chartering your own private jet to fy from DC to
Louisiana!).  It was basically a valuable gift from a party in interest
before the Court to a Justice who will shortly rule on that party's claim
-- coupled with an on-going close personal friendship!

Scalia has suggested that because the case involves Cheney in his "official
capacity," not his "personal capacity," there's less of a problem.  I.e.,
if Scalia faced the possibility of ruling against a hypothetical Cheney
contract claim that might cost Cheney, say, $20,000, he would recuse,
because people would reasonably think he would not want to disappoint his
friend by costing him $20K.  But because Scalia's ruling in this case will
"only" affect the powers and prerogatives of Cheney as Vice-President, no
problem, why would anyone think he would have the slightest concern over
whether or not to disappoint his friend in a case like that?

Obviously, the latter line of reasoning doesn't follow, unless we believe
that Cheney cares less about the powers and prerogatives of his office than
his personal finances or whatnot.  Since Cheney is extremely wealthy and
unlikely to have any personal financial concerns for the rest of his life,
and because I think Cheney is a very serious and dedicated public servant
(though horribly misguided on many issues in my view), I think the exact
opposite is true.  I think Cheney quite likely cares VERY DEEPLY about the
powers and prerogatives of his Office as Vice-President, as raised in this
interesting constitutional separation of powers case -- far MORE than he
likely cares about any personal financial issues.

Financial corruption and personal favoritism, and appearance of both, are
the core concerns of recusal. Yet we seem more interested in preserving a
silly myth that Justices approach constitutional issues with an
intellectual blank slate.

By federal statute, recusal is MANDATORY (unless waived by the parties) in
any case in which the judge's "impartiality might reasonably be questioned"
(see U.S. v. Kelly, 888 F.2d 732, 744 (11th Cir. 1989) (Johnson, J.).  I am
quite sure that Scalia does not subjectively or consciously feel any actual
lack of ability to rule impartially on the Cheney case.  But I personally
question whether his judgment may be subconsciously biased by his
relationship with Cheney.  And I think many millions of Americans do and
will also reasonably question his impartiality. Is there any enforceability
to this mandate aside from trusting the judge's own decision?  I think
Scalia's involvement with Cheney so clearly creates (at least) a
"reasonable question" about his impartiality, that it will be an
impeachable offense if Scalia goes ahead and participates in the Cheney
case.  Scalia may think otherwise, but the House and Senate have a right to
reasonably disagree.

Bryan Wildenthal
Thomas Jefferson School of Law

                 -----Original Message-----
                From:   June MacLeod
                Sent:   Wednesday, February 11, 2004 12:31 PM
                To:     Full-Time Professors; Staff
                Subject:        In preparation of Justice Scalia's visit

                        All His Ducks In a Row
                        Associated Press

                        Supreme Court Justice Antonin Scalia strongly
indicated he will ignore
                        calls to recuse himself from a court case involving
his friend and
                        hunting partner, Vice President Dick Cheney. Scalia
told a gathering at
                        Amherst College on Tuesday night there was nothing
improper about his
                        accompanying Cheney to Louisiana last month to hunt
ducks. The trip
                        came three weeks after the Supreme Court agreed to
hear the Bush
                        administration's appeal in a case involving private
meetings of
                        Cheney's energy task force.

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