Recusal standards for Justices who expressed firmly (evenintransigently) held views on subjects

Wed Mar 29 10:46:59 PST 2006

A lot of Justices have made extrajudicial statements about general issues.
Saying that the death penalty violates the evolving standards of human
decency is a statement about how one views a constitutional argument and
isn't really grounds for recusal.  What makes Scalia's comments potentially
different is that his comments were specifically directed at a particular
situation that the Court was about to hear and his stated reason--I had a
son over there being shot at--isn't that type of reason a Justice should
advance for taking a position.

Don

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, March 29, 2006 10:01 AM
To: CONLAWPROF at lists.ucla.edu
Subject: Re: Recusal standards for Justices who expressed firmly
(evenintransigently) held views on subjects

	Unless I'm mistaken, Justices Brennan and Marshall occasionally
made extrajudicial statements condemning the death penalty.  Should this
have led to their being recused from death penalty cases?

	Eugene

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Wednesday, March 29, 2006 9:42 AM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Justice Scalia statement about Gitmo

We know a lot about what sitting justices think. They often make very
clear in their opinions that they have a particular point of view on a
topic broader than the specific issue that must be decided (because
their view on the broader topic leads to a particular result on the
specific issue in the case). They even write books to tell us what they
think. Even nominees for the Supreme Court usually have a track record.
So it isn't necessarily a problem that we know where a justice or
potential justice stands.

It is different when a senator is asking a question during confirmation.
Then, it can appear that a commitment is being sought, perhaps in
exchange for a yes vote on confirmation.

Mark S. Scarberry
Pepperdine University School of Law

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of rjlipkin at aol.com
Sent: Wednesday, March 29, 2006 8:01 AM
To: bobsheridan at earthlink.net; wasb at albany.edu
Cc: SLevinson at law.utexas.edu; CONLAWPROF at lists.ucla.edu
Subject: Re: Justice Scalia statement about Gitmo

 Bob Sheridan writes:

"Constitutional law is not about "intellectual humility." It's about
what we believe."

    I think this misses the point of my post. First, I never wrote that
constitutional law was "about" intellectual humility. My point was that
intellectual humility, in my view, should be an attribute of any serious
intellectual inquiry. That doesn't preclude confidence in one's
position; it simply involves the recognition that one's position is only
bolstered by taking other people's position seriously and with the
respect due members of the appropriate intellectual community.  That's
the general point.  Second, and more important with regard to this
List's purposes, unelected justices should, again i! n my view, practice
intellectual humility with greater circumspection and restraint than
those engaged in intellectual inquiry and argument generally, especially
more so than legislators, though they too, in my view, should be bound
by the constraint of intellectual humility. 

     Approaches to controversy might differ in bar rooms, ball fields,
and political demonstrations, and I've been involved in such controversy
in all three venues. It is in non sequitur, however, to assume that
sitting Supreme Court justices in public presentations should fall into
any of these categories.

     Finally, I'm not sure there are many examples of when it is
appropriate for a judge to recuse himself more than this one. Justice
Scalia has already stated his opinion of the issues involved in strident
terms. Chief justice Roberts and Justice Alito, inter alia, have made it
clear in their confirmation hearings that even revealing a general
sense--or provisional inclination--about issues that might come before
the Court is completely inappropriate. It's not that this issue might
come before the! court, it is before the Court. If I recall correctly,
Justice Scalia embraced, in his confirmation hearing, the same
proinciple.  Well if this principle applies when the democratic branches
are deciding--virtually once and forever--whether a particular nominee
warrants confirmation, it's difficult to see why it would not apply with
more force throughout the career of the justice. 

Bobby

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware

-----Original Message-----
From: Bob Sheridan <bobsheridan at earthlink.net>
To: Stephen L. Wasby <wasb at albany.edu>
Cc: RJLipkin at aol.com; SLevinson at law.utexas.edu; mark.kende at drake.edu;
CONLAWPROF at lists.ucla.edu
Sent: Wed, 29 Mar 2006 07:26:00 -0800
Subject: Re: Justice Scalia statement about Gitmo

Constitutional law is not about "intellectual humility." It's about what
we believe. The STUDY of constitutional law, on the other hand, does
require taking account of competing views. Here, intellectual humility
may be helpful in avoiding quarrels en route to gaining understanding.
But in the fighting world where the dogs in the fight are the competing
views, intellectual humility is more apt to be a pose awaiting the
chance to make the rapier's thrust. 

I don't see grounds for Scalia recusing himself for his remarks. He go!
t the job as a top legal policy-maker for the nation because he had a
viewpoint productive of just such views. While we may expect ordinary
judges to recuse themselves if they appear to commit themselves on
issues in advance of trial, do we really expect the same of SC judges?
Or are we simply getting what we know what was in store? 

As for Scalia's mode of expression: pugnacious, argumentative,
in-your-face, etc., that IS what con-law comes down to in the final
analysis when it is actually being done, that is, argued, as opposed to
being studied in academia. The problem for the academics is to take such
statements, and those of the counter-protesters, and analyze them in
tellectually to see what's there. 

Scalia is a fighter for his views. He's not a hand-wringer, on the one
hand, on the other hand, etc. Of course he's going to express himself in
the punchiest way possible. This is a technique of debate, used to make
a point, the point being that any competing point is laughable. To the
rest of the country, the Abolitionists were laughing-stocks, until the
midst of the Civil War. Something happened. Suddenly they were great
moral leaders. Jim Crow. Blacks were relegated...and laughed at. Equal
protection later began to be taken seriously. A constitutional change
had take! n place not only on paper, but in the hearts of many people.
The manner of expression changed. 

Conlaw is not always fought out by the Marquis of Queensbury rules. 

rs 
sfls 

Stephen L. Wasby wrote: 
> I find Bobby's statement to be a good, strong one. Scal ia's tone >
off-the-bench is not particularly different from some of his "shots" 
> in his opinions in cases before the Supreme Court. At one "point in >
time," "collegial" --in "collegial court"-- meant an ability to 
> entertain and seriously consider others' arguments; now, in some >
courts, or at least for some judges, it seems to mean little 
> more than a technical "multi-member court." 
> Steve Wasby 
> 
> ----- Original Message ----- 
> *From:* RJLipkin at aol.com <mailto:RJLipkin at aol.com> 
> *To:* SLevinson at law.utexas.edu <mailto:SLevinson at law.utexas.edu> ; 
> mark.kende at drake.edu <mailto:mark.kende at drake.edu> ; 
> CONLAWPROF! @lists.ucla.edu << SPAN class=correction
id="">mailto:CONLAWPROF at lists.ucla.edu> 
> *Sent:* Sunday, March 26, 2006 10:17 PM 
> *Subject:* Re: Justice Scalia statement about Gitmo 
> 
> What I find overwhelmingly infuriating about Justice Scalia's 
> remarks is his apparent lack of anything resembling an ability for 
> self-criticism. "Get over it," "it's crazy," "not a very hard 
> question," "there was no way we could have turned that case down" 
> and "nobody has ever! thought otherwise" just for starters. His 
> apparent incapacity to try to see anything of value in the other 
> guy's point of view is maddening. No, it is apparently 
> inconceivable to him that the Supreme Court was politically 
> motivated in /Bush v. Gore/. And his exhibition of an entrenched, 
> in my terms, "unimodal" perspective that makes his solipsism not 
> only possible but a reality. > > To give life tenure to people with
intellects such as this 
> threatens, in my view, anything resembling deliberative discourse, 
> and in any event is, again in my view, madness. 
> > Bobby 
> > Robert Justin Lipkin 
> Professor of Law 
> Widener University School of Law 
> Delaware 
> 
>
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