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. 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.'" ===== Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "Politics is not a bad profession. If you succeed there are many rewards, if you disgrace yourself you can always write a book." Ronald Reagan __________________________________ Do you Yahoo!? Exclusive Video Premiere - Britney Spears http://launch.yahoo.com/promos/britneyspears/
