Re: recusal (unintended consequences)
I have no idea why Justice Scalia recused himself. (And, as you know, I remain unpersuaded that he was in fact under a duty to do so.) But let's assume that there is evidence that he did it in order to create the win-win situation that Richard Duncan initially hypothesized. I.e., A 4-4 affirmance would be a Godsend (bad pun intended) for Republicans who are champing at the bit to propose a keep God in the pledge of allegiance amendment as part of the 2004 election context. Since most of us are absolutely confident that we know that there are going to be at least 4 votes to reverse on the merits, Scalia's recusal would prevent an opinion of the Court reaching that result (and, presumably, obviating the need for such an amendment). Many people, of course, expect the moderates to use standing doctrine to dump the case, which would allow people to say that only a procedural technicality saved God as part of the Pledge (so that, therefore, an amendment is necessary to head off a case in which there is proper standing). I know of absolutely no one, incidentally who expects (or, save for Republicans, wants) the Supreme Court to affirm the Ninth Circuit, even among those who, like me, believe that the Ninth Circuit was clearly correct on the merits. (I favor the Bickelian passive virtue that says there's no standing.) In any event, if there were firm evidence of the scenario sketched above by Rick and accepted, at least for discussion purposes, by other participants (and, let me be clear, I am extremely doubtful that any such evidence exists), would that not be grounds for impeachment? I.e., would not such blatantly partisan strategic decisionmaking re recusal count as sufficient corruption and bad behavior to justify impeachment? I will not reopen Bush v. Gore, because I am willing, arguendo, to accept the proposition either that the majority in that case believed all of the arguments set out in the per curiam opinion (however much I doubt that) or that they were sincere Posnerians who believed that the country was endangered by continued uncertainty about the status of the election. In this hypothetical (initially presented, I repeat, by Richard Duncan and not by a crazed anti-Scalian like myself), the only thing that is sincere is a desire to help the Republican Party in the next election. To put it mildly, this totally collapses the distinction that Jack Balkin and I have tried to suggest between high politics (unavoidable as part of the judicial role in interpreting the Constitution) and low politics (presumptively avoidable and unacceptable). sandy
Re: recusal (unintended consequences)
It's certainly possible that there's a problem of this kind with the theory. I don't actually believe that the theory explains Scalia's decision. However, it's possible that 4 justices care enough about affirming the 9th Cir. decision that they're willing to risk the adverse political consequences. It depends on their rank order of preferences and on Scalia's. Their are 3 relevant scenarios: A. The 9th Cir. gets reversed, with no political benefit to Bush. B. The 9th Cir. is affirmed 5-4, with Bush getting a political benefit in the 2004 election as a result. But the decision becomes binding precedent. C. The 9th Cir. is affirmed on a 4-4 vote. Bush gets a political benefit, but no binding precedent is created. Let us assume that Scalia's rank order of preferences is 1. C 2. A 3. B On the other hand, 4 liberal justices have preference ordering as follows: 1. B 2. C 3. A The 4 other conservative justices will vote to overrule no matter what. By recusing himself, Scalia makes B impossible, and forces the liberals to choose between C and A, thereby ensuring that C is the outcome. It all depends on whether the 4 liberal justices believe that the legal outcome of the case is more important than a marginal increase in Bush's chances of winning the election. Since Scalia presumably knows the other justices and their values well, he may be in a better position to model their preferences than we are. Of course it's certainly possible that Scalia's inside info is knowledge that a 5-3 or greater majority exists among the other justices, and therefore his vote will not decide the outcome. Ilya Somin On Wed, 29 Oct 2003, Frank Cross wrote: Well, there is a serious internal problem with the theory. It assumes that only Scalia is politically strategic. I.e., he is willing to accept a legal outcome that is not preferable in order to gain a practical political advantage. But the liberals on the court can also be strategic. If they foresee the same consequences, they would have the same incentive to accept a legal outcome that is not preferable in order to avoid the political fallout. To counter Scalia's strategy, they could simply vote to reverse. Moreover, they could do so on procedural grounds and avoid setting any undesirable establishment clause precedent. At 06:08 PM 10/29/2003 -0500, you wrote: They may not be so reliably predictable to us, but it's possible that Scalia, using inside information, can predict their votes better. For example, he knows the views they expressed about the cert petition. Ilya Somin On Wed, 29 Oct 2003, Trevor Morrison wrote: Does Professor Duncan really think the O'Connors, Kennedys, and Breyers of the Court are that reliably predictable? At 12:11 PM 10/29/2003 -0800, you wrote: I have been absent from the list for awhile, so forgive me if this post opens up a stale topic. I wonder about the unintended consequences of a 4-4 affirmance in an election year (and at a time when judicial nominees are being subjected to the filibuster by Senate democrats). If I were a legal and political advisor to President Bush and the republicans, I would call this a best case scenario. The Pledge is struck down in June of an election year, but without causing an adverse national precedent. If I were Bush, I would love such an outcome. He can use it to break the filibuster in the Senate, and to wrap himself in the Pledge in the election. I wonder if this possibility occurred to Nino when he recused himself? Rick Duncan --- Conkle, Daniel O. [EMAIL PROTECTED] wrote: In the realm of even more speculative speculation: Perhaps Scalia is confident that the case will go his way even without his participation. If so, then the speculation that Chris proposes might have added credibility. Dan Conkle ** Daniel O. Conkle Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] ** -Original Message- From: Chris SCHROEDER [mailto:[EMAIL PROTECTED] Sent: Thursday, October 16, 2003 7:58 AM To: [EMAIL PROTECTED] Subject: Re: recusal I, too, share Sandy's puzzlement about Justice Scalia's recusal. One possible, and admittedly speculative, explanation: The recusal will be invoked often in the eventual confirmation hearings for the next justice (and sooner in confirmation hearings for lower court seats) as a justification for the nominee declining to answer questions about specific issues. Senator, the norms of judicial conduct prevent me from answering your question because the subject may come before me
Re: recusal (unintended consequences)
I just want to take this opportunity to become the first person (or at least the first person known to Sanford Levinson) to express the hope that the Supreme Court does affirm the 9th Circuit, even though I agree that it's unlikely they will do so. I too believe the 9th Cir. was right on the merits (setting aside the standing issue, for a moment, on which I don't have any view). Of course, the call is easy for me because my political and judicial ducks are perfectly aligned here. I think that the 9th Cir. decision was right AND I also would prefer the Republicans to win the 2004 election, despite what I see as their wrongheaded stance on the Pledge (or at least I prefer that the Democrats lose). There is a danger that a Pledge Amendment will pass, and that that will be worse than an adverse Supreme Court decision. But I think this risk is not too great because of the extreme difficulty of getting through the amendment process, and because any amendment that can pass will probably have to be very narrowly phrased. The situation presents a more difficult dilemma for the 95% or so of the population for whom their political and legal interests are at odds with each other here. I look forward to seeing how they resolve their dilemma. Ilya Somin On Wed, 29 Oct 2003, Sanford Levinson wrote: I have no idea why Justice Scalia recused himself. (And, as you know, I remain unpersuaded that he was in fact under a duty to do so.) But let's assume that there is evidence that he did it in order to create the win-win situation that Richard Duncan initially hypothesized. I.e., A 4-4 affirmance would be a Godsend (bad pun intended) for Republicans who are champing at the bit to propose a keep God in the pledge of allegiance amendment as part of the 2004 election context. Since most of us are absolutely confident that we know that there are going to be at least 4 votes to reverse on the merits, Scalia's recusal would prevent an opinion of the Court reaching that result (and, presumably, obviating the need for such an amendment). Many people, of course, expect the moderates to use standing doctrine to dump the case, which would allow people to say that only a procedural technicality saved God as part of the Pledge (so that, therefore, an amendment is necessary to head off a case in which there is proper standing). I know of absolutely no one, incidentally who expects (or, save for Republicans, wants) the Supreme Court to affirm the Ninth Circuit, even among those who, like me, believe that the Ninth Circuit was clearly correct on the merits. (I favor the Bickelian passive virtue that says there's no standing.) In any event, if there were firm evidence of the scenario sketched above by Rick and accepted, at least for discussion purposes, by other participants (and, let me be clear, I am extremely doubtful that any such evidence exists), would that not be grounds for impeachment? I.e., would not such blatantly partisan strategic decisionmaking re recusal count as sufficient corruption and bad behavior to justify impeachment? I will not reopen Bush v. Gore, because I am willing, arguendo, to accept the proposition either that the majority in that case believed all of the arguments set out in the per curiam opinion (however much I doubt that) or that they were sincere Posnerians who believed that the country was endangered by continued uncertainty about the status of the election. In this hypothetical (initially presented, I repeat, by Richard Duncan and not by a crazed anti-Scalian like myself), the only thing that is sincere is a desire to help the Republican Party in the next election. To put it mildly, this totally collapses the distinction that Jack Balkin and I have tried to suggest between high politics (unavoidable as part of the judicial role in interpreting the Constitution) and low politics (presumptively avoidable and unacceptable). sandy
Re: recusal
The problem with asking nominees to take positions at a confirmation hearing, in my opinion, is not that they will reveal "predispositions" (who does not have those?) but that the nominee faces a personal conflict of interest: he or she generally knows which answer will best advance his or her prospects for confirmation, and will be tempted to adjust positions accordingly. This is not true (or at least, not *as* true) when the nominee has expressed an opinion in the ordinary course of professional or academic life, as in a law review article. The point is that a judge's (or potential judge's) view on the issues should not be shaped by self-interest. -- Michael McConnell -Original Message-From: Marty Lederman [mailto:[EMAIL PROTECTED]Sent: Wednesday, October 22, 2003 11:26 AMTo: [EMAIL PROTECTED]Subject: Re: recusal Perhaps that does explain the recusal, but if nominees continue to insist that judicial ethics prevent them from disclosing their views on controverted legal issues,Senators still will be able to invoke Justice Scalia's own recent opinion for the Court in Republican Party of Minnesota v. White, 536 U.S. at 777-79, 781 n.8: A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law. As then-Justice REHNQUIST observed of our own Court: "Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers." Laird v. Tatum, 409 U.S. 824, 835 (1972) (memorandum opinion). Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. "Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias." Ibid. And because avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the "appearance" of that type of impartiality can hardly be a compelling state interest either. A third possible meaning of "impartiality" (again not a common one) might be described as open-mindedness. This quality in a judge demands, not that he have no preconceptions on legal issues, but that he be willing to consider views that oppose his preconceptions, and remain open to persuasion, when the issues arise in a pending case. This sort of impartiality seeks to guarantee each litigant, not an equal chance to win the legal points in the case, but at least some chance of doing so. It may well be that impartiality in this sense, and the appearance of it, are desirable in the judiciary, but we need not pursue that inquiry, since we do not believe the Minnesota Supreme Court adopted the announce clause for that purpose. Respondents argue that the announce clause serves the interest in open- mindedness, or at least in the appearance of openmindedness, because it relieves a judge from pressure to rule a certain way in order to maintain consistency with statements the judge has previously made. The problem is, however, that statements in election campaigns are such an infinitesimal portion of the public commitments to legal positions that judges (or judges-to-be) undertake, that this object of the prohibition is implausible. Before they arrive on the bench (whether by election or otherwise) judges have often committed themselves on legal issues that they must later rule upon. See, e.g., Laird, supra, at 831-833 (describing Justice Black's participation in several cases construing and deciding the constitutionality of the Fair Labor Standards Act, even though as a Senator he had been one of its principal authors; and Chief Justice Hughes's authorship of the opinion overruling Adkins v. Children's Hospital of D. C., 261 U.S. 525 (1923), a case he had criticized in a book written before his appointment to the Court). More common still is a judge's confronting a legal issue on which he has expressed an opinion while on the bench. Most frequently, of course, that prior _expression_ will have occurred in ruling on an earlier case. But judges often state their views on disputed legal issues outside the context of adjudication--in classes that they conduct, and in books and speeches. . . . Of course a
Re: recusal
r jurisprudential views that are (by the Senate's or Senator's lights) disfavoredor harmful. I do not mean to suggest that this is an easy question. But I'm not certain that the unfortunate possibility of a testimonial"adjustment" of views is sufificent reason for Senators not to seek candid testimony from nominees on dififcult and important legal questions, even (especially?) if such questions might be the subject of a case that comes before the judge should she be confirmed. - Original Message - From: Michael McConnell To: [EMAIL PROTECTED] Sent: Friday, October 24, 2003 9:22 AM Subject: Re: recusal The problem with asking nominees to take positions at a confirmation hearing, in my opinion, is not that they will reveal "predispositions" (who does not have those?) but that the nominee faces a personal conflict of interest: he or she generally knows which answer will best advance his or her prospects for confirmation, and will be tempted to adjust positions accordingly. This is not true (or at least, not *as* true) when the nominee has expressed an opinion in the ordinary course of professional or academic life, as in a law review article. The point is that a judge's (or potential judge's) view on the issues should not be shaped by self-interest. -- Michael McConnell -----Original Message-From: Marty Lederman [mailto:[EMAIL PROTECTED]Sent: Wednesday, October 22, 2003 11:26 AMTo: [EMAIL PROTECTED]Subject: Re: recusal Perhaps that does explain the recusal, but if nominees continue to insist that judicial ethics prevent them from disclosing their views on controverted legal issues,Senators still will be able to invoke Justice Scalia's own recent opinion for the Court in Republican Party of Minnesota v. White, 536 U.S. at 777-79, 781 n.8: A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law. As then-Justice REHNQUIST observed of our own Court: "Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers." Laird v. Tatum, 409 U.S. 824, 835 (1972) (memorandum opinion). Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. "Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias." Ibid. And because avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the "appearance" of that type of impartiality can hardly be a compelling state interest either. A third possible meaning of "impartiality" (again not a common one) might be described as open-mindedness. This quality in a judge demands, not that he have no preconceptions on legal issues, but that he be willing to consider views that oppose his preconceptions, and remain open to persuasion, when the issues arise in a pending case. This sort of impartiality seeks to guarantee each litigant, not an equal chance to win the legal points in the case, but at least some chance of doing so. It may well be that impartiality in this sense, and the appearance of it, are desirable in the judiciary, but we need not pursue that inquiry, since we do not believe the Minnesota Supreme Court adopted the announce clause for that purpose. Respondents argue that the announce clause serves the interest in open- mindedness, or at least in the appearance of openmindedness, because it relieves a judge from pressure to rule a certain way in order to maintain consistency with statements the judge has previously made. The problem is, however, that statements in election campaigns are such an infinitesimal portion of the public commitments to legal positions that judges (or judges-to-be) undertake, that this object of the prohibition is implausible. Before they arrive on the bench (whether by election or otherwise) judges have often committed themselves on legal issues that they must later rule u
Re: recusal
Perhaps that does explain the recusal, but if nominees continue to insist that judicial ethics prevent them from disclosing their views on controverted legal issues,Senators still will be able to invoke Justice Scalia's own recent opinion for the Court in Republican Party of Minnesota v. White, 536 U.S. at 777-79, 781 n.8: A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law. As then-Justice REHNQUIST observed of our own Court: "Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers." Laird v. Tatum, 409 U.S. 824, 835 (1972) (memorandum opinion). Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. "Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias." Ibid. And because avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the "appearance" of that type of impartiality can hardly be a compelling state interest either. A third possible meaning of "impartiality" (again not a common one) might be described as open-mindedness. This quality in a judge demands, not that he have no preconceptions on legal issues, but that he be willing to consider views that oppose his preconceptions, and remain open to persuasion, when the issues arise in a pending case. This sort of impartiality seeks to guarantee each litigant, not an equal chance to win the legal points in the case, but at least some chance of doing so. It may well be that impartiality in this sense, and the appearance of it, are desirable in the judiciary, but we need not pursue that inquiry, since we do not believe the Minnesota Supreme Court adopted the announce clause for that purpose. Respondents argue that the announce clause serves the interest in open- mindedness, or at least in the appearance of openmindedness, because it relieves a judge from pressure to rule a certain way in order to maintain consistency with statements the judge has previously made. The problem is, however, that statements in election campaigns are such an infinitesimal portion of the public commitments to legal positions that judges (or judges-to-be) undertake, that this object of the prohibition is implausible. Before they arrive on the bench (whether by election or otherwise) judges have often committed themselves on legal issues that they must later rule upon. See, e.g., Laird, supra, at 831-833 (describing Justice Black's participation in several cases construing and deciding the constitutionality of the Fair Labor Standards Act, even though as a Senator he had been one of its principal authors; and Chief Justice Hughes's authorship of the opinion overruling Adkins v. Children's Hospital of D. C., 261 U.S. 525 (1923), a case he had criticized in a book written before his appointment to the Court). More common still is a judge's confronting a legal issue on which he has expressed an opinion while on the bench. Most frequently, of course, that prior _expression_ will have occurred in ruling on an earlier case. But judges often state their views on disputed legal issues outside the context of adjudication--in classes that they conduct, and in books and speeches. . . . Of course all statements on real-world legal issues "indicate" how the speaker would rule "in specific cases." And if making such statements (of honestly held views) with the hope of enhancing one's chances with the electorate displayed a lack of fitness for office, so would similarly motivated honest statements of judicial candidates made with the hope of enhancing their chances of confirmation by the Senate, or indeed of appointment by the President. Since such statements are made, we think, in every confirmation hearing, Justice STEVENS must contemplate a federal bench filled with the unfit. - Original Message - From: Matthew J. Franck To: [EMAIL PROTECTED] Sent: Wednesday, October 22, 2003 11:16 AM Subject: Re: recusal Shameless self-promotion department: On Justice Scalia's recusal from Newdow, Chris Schroeder recently suggested here that it
Re: recusal
I, too, share Sandy's puzzlement about Justice Scalia's recusal. One possible, and admittedly speculative, explanation: The recusal will be invoked often in the eventual confirmation hearings for the next justice (and sooner in confirmation hearings for lower court seats) as a justification for the nominee declining to answer questions about specific issues. Senator, the norms of judicial conduct prevent me from answering your question because the subject may come before me. An answer now would prevent me from hearing the case, just as Justice Scalia was prevented from hearing the pledge case because of statements he had made earlier about it. Of course, nominees take this line currently, so it is debatable whether the Scalia precedent adds very much to the argument. Chris [EMAIL PROTECTED] 10/15/03 08:03PM Indeed, didn't O'Connor and Rehnquist join Burger's majority opinion in Chambers (1983) that I seem to recall expressly cited the Pledge of Allegiance as an obvious example of a permissible governmental reference to religion? Or was that Lynch v Donnelly (1984)? How would that be different in principle from Scalia's public comments? Maybe they could argue it didn't address the application in the schools context. I think it is inappropriate for a Justice to speak in a public and incautious way about issues likely to come before the Court, but I don't think it amounts to a conflict of interest comparable to a personal or financial connection to a case. It's more analogous, as Sandy suggests, to generalized (or sometimes very specific) intellectual bias or prejudgment of an issue on the merits. Bryan Wildenthal Thomas Jefferson School of Law -Original Message- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] Behalf Of Sanford Levinson Sent: Wednesday, October 15, 2003 4:20 PM To: [EMAIL PROTECTED] Subject: Re: recusal Given my own views, I'm delighted that Scalia will not be participating, but I'm not clear why he has to recuse himself because of his candid remarks to the Knights of Columbus and not, say, if he had written one of his patented dissents in a school prayer case that made reference to the Pledge and castigated the majority for adopting an illegitimate doctrine that, if applied conscientiously, would exclude God from the public forums and from political life. Recall Rehnquist's and O'Connor's statements in Garcia that they basically couldn't wait until they had the votes to overrule that decision and return to Ussery. Why didn't that compel recusal? Or Brennan's and Marshall's repeatedly saying that the death penalty was unconstitutional in all circumstances presumably can be interpreted as meaning that they had pre-judged each particular capital punishment case. Should they have recused themselves? None of these are rhetorical questions. I really don't understand the theory (or practice) of recusal. sandy At 06:08 PM 10/15/2003, you wrote: According to a Linda Greenhouse story in today's NY Times, Newdow is a lawyer and a medical doctor who has represented himself in the litigation. (page A14). Newdow apparently moved for recusal of Justice Scalia because of remarks that Justice Scalia made regarding the specific case at a meeting co-sponsored by the Knights of Columbus, which, according to the NY Times, played a leading role in persuading Congress to add 'under God' to the pledge. NY Times: Justice Scalia's speech at an event for Religious Freedom Day pointed to the Ninth Circuit's decision in this case as an example of how courts were misinterpreting the Constitution to 'exclude God from the public forums and from political life.'
Re: recusal
Another example is CHief Justice Rehnquist's opposition to the civil ritghts cause of action in VAWA, stated both both before and after VAWA became law. (I believe there was discussion of this on the list a seemingly long time ago; I have documentation) He didn't recuse himself in *Morrison*. Lynne Prof. Lynne Henderson Boyd School of Law--UNLV 4505 Maryland Pkwy Box 451003 Las Vegas, NV 89154 702-895-2625 - Original Message - From: Bryan Wildenthal [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Wednesday, October 15, 2003 5:03 PM Subject: Re: recusal Indeed, didn't O'Connor and Rehnquist join Burger's majority opinion in Chambers (1983) that I seem to recall expressly cited the Pledge of Allegiance as an obvious example of a permissible governmental reference to religion? Or was that Lynch v Donnelly (1984)? How would that be different in principle from Scalia's public comments? Maybe they could argue it didn't address the application in the schools context. I think it is inappropriate for a Justice to speak in a public and incautious way about issues likely to come before the Court, but I don't think it amounts to a conflict of interest comparable to a personal or financial connection to a case. It's more analogous, as Sandy suggests, to generalized (or sometimes very specific) intellectual bias or prejudgment of an issue on the merits. Bryan Wildenthal Thomas Jefferson School of Law -Original Message- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] Behalf Of Sanford Levinson Sent: Wednesday, October 15, 2003 4:20 PM To: [EMAIL PROTECTED] Subject: Re: recusal Given my own views, I'm delighted that Scalia will not be participating, but I'm not clear why he has to recuse himself because of his candid remarks to the Knights of Columbus and not, say, if he had written one of his patented dissents in a school prayer case that made reference to the Pledge and castigated the majority for adopting an illegitimate doctrine that, if applied conscientiously, would exclude God from the public forums and from political life. Recall Rehnquist's and O'Connor's statements in Garcia that they basically couldn't wait until they had the votes to overrule that decision and return to Ussery. Why didn't that compel recusal? Or Brennan's and Marshall's repeatedly saying that the death penalty was unconstitutional in all circumstances presumably can be interpreted as meaning that they had pre-judged each particular capital punishment case. Should they have recused themselves? None of these are rhetorical questions. I really don't understand the theory (or practice) of recusal. sandy At 06:08 PM 10/15/2003, you wrote: According to a Linda Greenhouse story in today's NY Times, Newdow is a lawyer and a medical doctor who has represented himself in the litigation. (page A14). Newdow apparently moved for recusal of Justice Scalia because of remarks that Justice Scalia made regarding the specific case at a meeting co-sponsored by the Knights of Columbus, which, according to the NY Times, played a leading role in persuading Congress to add 'under God' to the pledge. NY Times: Justice Scalia's speech at an event for Religious Freedom Day pointed to the Ninth Circuit's decision in this case as an example of how courts were misinterpreting the Constitution to 'exclude God from the public forums and from political life.'
Re: recusal
I haven't been able to find the motion seeking recusal (has anyone seen it?), but press accounts indicate that it was predicated, at least in part, on a claimed violation of the Code of Judicial Conduct. The relevant provision would seem to be: CODE OF CONDUCT FOR UNITED STATES JUDGES Canon 3(A)(6) A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge's direction and control. This proscription does not extend to public statements made in the course of the judge's official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education. _ Under this canon, statements in a judicial opinion (including those indicating a plan to overrule when enough votes are at hand), scholarly articles or speeches, or even statements about the merits of purely hypothetical cases would appear to be permissible, while other public comments about the merits of a pending (or impending) case would not. The code of conduct might not be precisely congruent with appropriate recusal standards, but it does seem to provide a reasonable basis for a decision to recuse. In an interesting irony, Newdow was quoted before the decision to recuse as saying, It would be cool if he does [recuse]. God would be speaking. http://www.law.com/jsp/article.jsp?id=1063212045712 Ed Hartnett Seton Hall
Re: recusal
Given my own views, I'm delighted that Scalia will not be participating, but I'm not clear why he has to recuse himself because of his candid remarks to the Knights of Columbus and not, say, if he had written one of his patented dissents in a school prayer case that made reference to the Pledge and castigated the majority for adopting an illegitimate doctrine that, if applied conscientiously, would exclude God from the public forums and from political life. Recall Rehnquist's and O'Connor's statements in Garcia that they basically couldn't wait until they had the votes to overrule that decision and return to Ussery. Why didn't that compel recusal? Or Brennan's and Marshall's repeatedly saying that the death penalty was unconstitutional in all circumstances presumably can be interpreted as meaning that they had pre-judged each particular capital punishment case. Should they have recused themselves? None of these are rhetorical questions. I really don't understand the theory (or practice) of recusal. sandy At 06:08 PM 10/15/2003, you wrote: According to a Linda Greenhouse story in today's NY Times, Newdow is a lawyer and a medical doctor who has represented himself in the litigation. (page A14). Newdow apparently moved for recusal of Justice Scalia because of remarks that Justice Scalia made regarding the specific case at a meeting co-sponsored by the Knights of Columbus, which, according to the NY Times, played a leading role in persuading Congress to add 'under God' to the pledge. NY Times: Justice Scalia's speech at an event for Religious Freedom Day pointed to the Ninth Circuit's decision in this case as an example of how courts were misinterpreting the Constitution to 'exclude God from the public forums and from political life.'
