Scalia's (non)recusal
Bryan Wildenthal
bryanw at tjsl.edu
Tue Feb 17 12:51:40 PST 2004
I agree with Mark.
-----Original Message-----
From: Mark Tushnet [mailto:tushnet at law.georgetown.edu]
Sent: Tuesday, February 17, 2004 12:47 PM
To: Bryan Wildenthal
Cc: conlawprof at lists.ucla.edu
Subject: Re: RE: Scalia's (non)recusal
I sent the following earlier today, but apparently only to Mark Scarberry. I think it still relevant to the discussion:
I couldn't open the link Mark Scarberry provided, but I would note that I at least find the practice of justices teaching for pay at summer schools troubling, and maybe grounds for recusal in cases involving the institutions at which they teach. I would be troubled by their accepting honoraria for speeches as well, although I think the practice is for them to refuse such honoraria (or direct that they be given to charities and the like -- although even there I'd be a little nervous). Reimbursement for ordinary travel expenses seems to me different, but not, it seems to me, extraordinary provisions for travel. (Even first class air fare bothers me.) If justices think that they need to supplement the income the taxpayers have decided to pay them, they should seek higher pay (and people like me should support those efforts), or they should find another job that pays them what they think they need. (My intuitions about lower court judges are different regarding teaching, pr
obably because of the more limited scope of their decisions -- although maybe I could be persuaded that I'm wrong about them.)
One reason I'm troubled about the teaching stuff is this: I would think it clear that for some period (perhaps five years, perhaps longer), a judge at any level who was appointed directly from a law school position (Gerald Lynch, William Fletcher, Richard Posner, etc. -- not Scalia, Ginsburg, or Breyer) should recuse himself/herself from cases in which the former employing institution was a party. (Thurgood Marshall recused himself from cases in which the NAACP was a party for somewhere between fifteen and twenty years after his appointments, first to the Second Circuit, then to the Supreme Court.) Current "employment," even in a summer school position, doesn't seem to me all that different.
----- Original Message -----
From: Bryan Wildenthal <bryanw at tjsl.edu>
Date: Tuesday, February 17, 2004 3:38 pm
Subject: RE: Scalia's (non)recusal
> 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
> [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
> institutionwith 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
> EqualProtection 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
> junketspaid 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,
> Justicesseldom 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
> affirmativeaction program declared unconstitutional?
>
> Now, I don't think any Justices should be impeached for not having
> recusedthemselves 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
> violatesDue 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-
> recusalin 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
> Scaliais 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
> wouldrule 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
> interestin the pledge case, nor any personal tie to any litigant --
> whatever
> feelings he has about it are purely based on the sheer principled
> meritsof 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
> fromDC 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
> friendin 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
> extremelywealthy 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
> likelycares VERY DEEPLY about the powers and prerogatives of his
> Office as
> Vice-President, as raised in this interesting constitutional
> separationof 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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