Scalia's nonrecusal

Sat Mar 20 08:00:45 PST 2004

I agree with Prof. Henderson that Scalia should have recused himself on
appearance of impropriety grounds.  What saddened me when I read Scalia's
memo about why he wouldn't was what it revealed about the appointment
process.  Although I already knew (as I'm confident we all do) that it's
usually who potential judicial nominees know that matters, Scalia was too
flip about it for my tastes.

Scott Gerber
Law College
Ohio Northern University

At 05:46 PM 3/19/04 -0800, Lynne Henderson wrote:
>I don't understand the claim that this only arises when "we" have "certain
>partisan/non-partisan expectationsof judges" as a result of antebellum
>practice.  The Code of Judicial Conduct didn't exist then, nor did the
>concerns about "appearance of  impropriety".  Customs matter, and there have
>been changes in custom since Abe Fortas's day, not to mention since FDR's
>day--in most places, and at most times, at least.  The, er, "intimacy" of
>duck-hunting (and pheasant hunting) troubles me a great deal, and it would
>trouble me if, say, Justice Stevens or Justice Ginsberg went on a similar
>(but less lethal to birds) trip with a litigant.
>SIncerely
>Lynne
>
>Prof. Lynne Henderson
>
>----- Original Message ----- 
>From: "Mark Graber" <mgraber at gvpt.umd.edu>
>To: <conlawprof at lists.ucla.edu>; <bryanw at tjsl.edu>
>Sent: Thursday, March 18, 2004 3:37 PM
>Subject: RE: Scalia's nonrecusal
>
>
>> An observation inspired in part by Scalia's discussion of the nineteenth
>> century precedents and in part by claims, see McCloskey and Levinson,
>> THE AMERICAN SUPREME COURT (I believe) that it would be nice to have a
>> justice with far more political experience.  Antebellum Supreme Court
>> justices, particularly Jacksonians, certainly fit that mode.  They had
>> extremely close political and personal relationships with prominent
>> political figures.  The Story-Webster relationship is well-known.  Less
>> known is that Catron was a close friend of Andew Jackson's, Polk's
>> campaign manager, and a confidant (not just in Dred Scott) of James
>> Buchanan (there is a great judicial biography to be written here).  So
>> from the antebellum Jacksonian perspective, there is nothing unusual
>> about a justice being buddies with the Vice President, taking vacations
>> together, and not feeling the need for recusal.  Moreover, as Scalia
>> points out, more politically active justices have always behaved in a
>> similar manner (and as Bruce Murphy will point out, the conversations at
>> the ski resort are almost never restricted to "how is the snow.").  So I
>> presume that if Orin Hatch or George Mitchell (probably too old now) get
>> the next nomination, they will behave more like Catron and Douglas, then
>> like, say Souter.
>>      Put in context, Scalia is famed for his demand for a strict
>> separation of law and politics.  But his behavior off the court most
>> strongly resembles those justices who did not make sharp separations
>> between law and politics.  This is not to decide one way of the other on
>> the recusal issue, but to highlight that the issue arises only when we
>> have certain partisan/non-partisan expectations of justices.
>>
>> Mark A. Graber
>>
>> >>> "Bryan Wildenthal" <bryanw at tjsl.edu> 03/18/04 6:21 PM >>>
>> I keep swearing off active participation on Con Law Prof because of
>> press of other duties, but Justice Scalia's remarkably defensive and
>> implausible ruling on the motion for recusal in the Cheney case is too
>> much to resist.  I'm sure my colleagues on this list will follow up with
>> ample commentary on it (and I will not have time to contribute beyond
>> this email), but I would note just the following:
>>
>> Scalia concedes that he has been a close personal friend of Cheney's for
>> more than a quarter century (Mem at 2, since Ford Admin), and he
>> concedes (or at least acknowledges a serious and substantial allegation
>> in connection with this case) that Cheney's personal involvement, as a
>> named party, with the particular conduct and issues at stake in this
>> lawsuit far exceeds what is perhaps typical of most other
>> official-capacity suits against named government officials (Mem at 5-9;
>> thus rendering irrelevant, though Scalia does not admit this, the more
>> general issue whether judges should recuse based on friendship with any
>> govt official sued in their official capacity -- I agree Scalia is
>> probably correct as a general rule on that issue).
>>
>> Incidentally, the most analogous case cited by Scalia (Mem at 15-16), a
>> ski trip by Justice White with AG Bobby Kennedy in 1963, shortly before
>> Kennedy personally argued a case before the Court, illustrates the force
>> of the recusal argument.  Though regrettably White did not recuse in
>> that case, perhaps because ethical attitudes were more lax then, clearly
>> he should have. That Scalia says "I see nothing wrong about" White's
>> socializing with Kennedy (Mem at 17) illustrates the ethical obtuseness
>> that he is laboring under in this case. In any event, Cheney's alleged
>> personal involvement in this case, and the potential impact on his
>> personal reputation, are far greater even than in the Kennedy-White
>> incident. For Scalia to assert, with a straight face, that "I do not see
>> how [Cheney's] 'reputation and integrity are on the line' any more than
>> the agency head's reputation and integrity are on the line in virtually
>> all official-action suits," (Mem at 9), is so ludicrous that it would be
>> laughable were the issue not so serious.
>>
>> Most troublingly, however, Scalia CONCEDES that Cheney may well suffer
>> personal "political consequences" from the outcome of the case (Mem at
>> 9). But Scalia's response to that argument is a stunning and obvious non
>> sequitur which totally misses the point of the recusal statute.  Scalia
>> says that "political consequences are not my concern," and that we
>> should not "expect judges to take account of political consequences,"
>> and that to ask them to do so "is to ask judges to do precisely what
>> they should not do."  (Mem at 9)
>>
>> Of course Scalia (like any judge) SHOULD not consider such political
>> damage to a party who is a personal friend, in ruling on the merits of
>> the case. And of course we should all hope that Scalia is being
>> subjectively truthful in saying he would not (and I believe he is being
>> subjectively truthful), and that he will not even be unconsciously
>> affected by the possibility. No one is "expecting" Scalia to consider
>> such factors in rendering judgment on the case, and of course he SHOULD
>> not. But the basis of the recusal motion is PRECISELY the concern that
>> he WILL or MAY (or that the public may "reasonably question" that he
>> might). So of course he MUST consider such factors in RULING ON THE
>> RECUSAL MOTION!
>>
>> How can Scalia possibly say that it is "wrong (and quite impossible) to
>> make recusal depend upon what degree of political damage a particular
>> case can be expected to inflict" (Mem at 9-10), on a named party who is
>> a concededly close personal friend of the judge, and whose personal
>> conduct is central to the issue in the case? What other kinds of factors
>> could MORE properly affect recusal, when it is statutorily dependent on
>> whether "reasonable questions" exist based on the totality of
>> circumstances of a given case?
>>
>> This is outrageous! Scalia's memorandum is as implausible as it is
>> defensive. The fundamental degree to which he misses the central
>> relevant issue of recusal (based on friendship with a party) illustrates
>> precisely why no one should try to be "judge in his own cause."  The
>> current system which leaves it up to the challenged judge to decide the
>> recusal issue is a scandal that must be changed. To my mind, Scalia's
>> bungled attempt to do so in this Memorandum only increases the
>> reasonable questions that already exist about his ability to be
>> impartial in this case.
>>
>> Just so I am not taken as relentlessly anti-Scalia, I would again note
>> the argument I made in an earlier posting that Scalia was and is
>> actually being too HARD on himself, by erring in favor of recusing
>> himself in the Newdow Pledge of Allegiance case. While his ill-advised
>> public comments apropos that case certainly reduce what little suspense
>> there may have been about how he would rule in that case, they do not,
>> in my opinion, create a reasonable question about his ability to be
>> impartial in that case, for any reasons properly addressed by the
>> recusal statute (which does NOT properly, I think, reach issues of sheer
>> philosophical or ideological "bias").
>>
>> Bryan Wildenthal
>> Thomas Jefferson School of Law
>>
>>
>> -----Original Message-----
>> From: conlawprof-bounces at lists.ucla.edu
>> [mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Diane Marie Amann
>> Sent: Thursday, March 18, 2004 12:14 PM
>> To: conlawprof at lists.ucla.edu
>> Subject: Scalia's nonrecusal
>>
>>
>> Justice Scalia has filed a 21-page memorandum explaining his nonrecusal
>> in Cheney.  It's available at:
>>
>> http://news.findlaw.com/nytimes/docs/scotus/chny31804jsmem.pdf
>>
>> Best,
>>
>> Diane
>>
>>
>> Diane Marie Amann
>> Professor of Law
>> University of California, Davis, School of Law
>> Martin Luther King, Jr. Hall
>> 400 Mrak Hall Drive
>> Davis, California  95616  USA
>> ph.   530.754.9099
>> fax:  530.752.4704
>> eml: dmamann at ucdavis.edu, dma113 at hotmail.com
>>
>>
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**********
Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty/gerber/