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.'"
