Scalia's (non)recusal

[Bryan Wildenthal]

I think Mark raises a very legitimate issue, one I hadn't thought about.  It should be looked into, and a more sternly ethical policy adopted, if need be. It makes a difference, I think, how specific and direct, or diffuse and generalized on the other hand, the bias or interest or relationship is.

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Scarberry, Mark
Sent: Tuesday, February 17, 2004 12:44 AM
To: 'conlawprof at lists.ucla.edu '
Subject: RE: Scalia's (non)recusal


I assume that on Bryan's reasoning any Justice who gets paid thousands of
dollars and gets an all-expenses paid European junket from an institution
with an interest in a case before the court ought to recuse himself or
herself, or face impeachment. 

As I recall, both public and private law schools had a substantial stake in
the outcome of Grutter v. Bollinger. Private universities' law schools may
have no greater right to engage in racial affirmative action under Title VI
than public universities' law schools have under Title VI and the Equal
Protection Clause. I would argue that private institutions should have a
greater right to do so, but people who know more about this than I do have
told me I'm wrong. (By the way, I'm glad that the outcome in Grutter makes
clear that my law school can continue to engage in racial affirmative
action, which I've strongly supported at my school.)

I wonder if, as a result of summer school employment and European junkets
paid for by law schools, there are any Justices whose impartiality in
deciding Grutter might reasonably have been questioned? See, e.g.,
http://www.detnews.com/2002/politics/0208/26/a03-571381.htm. I wonder
further if there are any Justices whose votes in Grutter could reasonably be
seen as inconsistent with their votes in Adarand? Could one reasonably think
that such Justices might have been influenced by their employment by
institutions with a stake in the outcome of Grutter? After all, Justices
seldom seek employment from state agencies giving out construction contracts
like the one at issue in Adarand. How would I have felt about this if I had
been a rejected applicant seeking to have Michigan Law School's affirmative
action program declared unconstitutional? 

Now, I don't think any Justices should be impeached for not having recused
themselves in Grutter. And I don't think any Justices were influenced by
their desire for future employment and future junkets. I do think, though,
that there was at least as much cause for recusal of some of the Justices in
Grutter as there is for recusal of Justice Scalia in the energy task force
case. I'd be interested in Bryan's view on this, and how his view on it
might square with his strongly stated view in the message below. 

Mark Scarberry
Pepperdine

-----Original Message-----
From: Bryan Wildenthal
To: conlawprof at lists.ucla.edu
Sent: 2/16/04 9:48 PM
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
			SCALIA DEFENDS HUNTING TRIP WITH CHENEY
			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.

	
http://news.findlaw.com/ap/a/w/1154/2-11-2004/20040211083006_101.html


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