Scalia's (non)recusal
Mark Tushnet
tushnet at law.georgetown.edu
Tue Feb 17 19:57:55 PST 2004
Now that I've seen the link, it looks to me as if Mark Scarberry's standard -- modified by my I think sensible suggestion that pay matters -- would require the recusal of all four dissenters in Grutter and one member of the majority. And, putting aside the question of the statutorily required quorum, a decision in Grutter would have been unanimous (by Souter and Stevens) if his more rigorous standard were applied.
----- Original Message -----
From: "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
Date: Tuesday, February 17, 2004 6:03 pm
Subject: RE: RE: Scalia's (non)recusal
> Here is the link again to the article on Justices teaching summer
> school:http://www.detnews.com/2002/politics/0208/26/a03-571381.htm
>
> In response to Brian Landsberg, I have no objection at all to Justices
> earning modest amounts of money teaching summer school or to their
> receivingnonextravagant travel and lodging assistance to do so.
> (Full disclosure:
> We've had two Justices teach courses here at Pepperdine.)
>
> The point of my post was that the effect of summer school teaching
> on the
> perceived neutrality of justices deciding cases that are crucial
> to law
> schools is at least as great as the effect of a duck hunting trip
> on Justice
> Scalia's perceived neutrality in the energy task force case.
> Neither one
> bothers me much (though I think in a slightly different vein that
> the desire
> by Justices for the approval of the academy can be a more corrupting
> influence than the desire to maintain a duck hunting friendship).
> But I
> wanted to suggest that those who have a problem with the duck
> hunting ought
> to have a problem with the summer school.
>
> I appreciate Mark Tushnet's comment that the summer school
> teaching is
> "troubling, and maybe grounds for recusal in cases involving the
> institutions at which [the Justices] teach." My point goes a bit
> further. A
> Justice who has a pattern of employment by a drug company ought to
> considerrecusal in any case that raises an issue crucial to the
> drug industry.
> Grutter involved an issue crucial to every law school in the
> country; indeed
> our law school association (AALS) requires schools to engage in
> affirmativeaction because the law schools as a group believe it is
> so important. Thus
> it could be seen to raise a serious issue when Justices who took
> money and
> trips (and intend to keep on doing so) from law schools decide an
> issue of
> such importance to law schools. Perhaps it should not matter
> whether the law
> school at which they teach is a named party.
>
> As my post said, I don't think the Justices were at all likely to be
> influenced by their summer school teaching opportunities, and thus
> I don't
> think recusal was necessary. But those who would use the "I" word
> (impeachment) to describe the appropriate response to nonrecusal
> by Justice
> Scalia in the energy task force case ought to be asked to apply
> their very
> strict standards to other cases, as well.
>
> To Bryan Wildenthal's credit, he indicates a willingness to
> explore whether
> the summer school teaching by Justices is a problem. I doubt, though,
> whether we are going to hear calls for impeachment of any
> summer-school-teaching Justice whose vote in Grutter was more in
> line with
> the wishes of law schools than might have been predicted by his or
> her vote
> in Adarand. In the absence of such calls (duck hunting calls,
> perhaps?), the
> idea of impeaching Justice Scalia over this duck matter is simply
> Daffy.
> That's all folks!
>
> Mark S. Scarberry
> Pepperdine University School of Law
>
>
> -----Original Message-----
> From: Brian Landsberg [blandsberg at pacific.edu]
> Sent: Tuesday, February 17, 2004 1:35 PM
> To: tushnet at law.georgetown.edu; bryanw at tjsl.edu
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: RE: Scalia's (non)recusal
>
> My understanding is that the law restricts the amount of outside
> incomea Justice may earn from speaking or teaching engagements.
> Many students
> have benefitted by taking classes that Justices teach. I know that
> Justice Kennedy, who taught at Pacific/McGeorge when he was on the
> NinthCircuit and continues to teach in our summer program in
> Salzburg, has a
> great gift for teaching. So I'm curious why either Mark would
> object to
> him doing so.
>
> Of course, if the University of Pacific or McGeorge ever is
> required to
> appear before the Supreme Court, he should probably recuse
> himself. But
> how many law schools have cases in the Supreme Court?
>
> >>> Mark Tushnet <tushnet at law.georgetown.edu> 02/17/2004 12:47:24 PM
> >>>
> 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
> thatI at least find the practice of justices teaching for pay at
> summerschools 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
> practiceis 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
> thinkthey need. (My intuitions about lower court judges are different
> regarding teaching, pr
> obably because of the more limited scope of their decisions --
> althoughmaybe 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.
> (ThurgoodMarshall recused himself from cases in which the NAACP
> was a party for
> somewhere between fifteen and twenty years after his appointments,
> firstto 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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