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. 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.'"
