In connection with Rick's suggestion that Senate Democrats may fall all over themselves to protect themselves from the backlash from a 4-4 affirmance of Newdow, note the Senate's passage of a modified version of the President's Healthy Forests initiative 97-1 during the disastrous fires here in Southern California. See http://www.washingtonpost.com/wp-dyn/articles/A38221-2003Oct29.html; http://hughhewitt.com (Chapman law professor Hugh Hewitt's politically conservative blog for October 30, 2003, with critical comment on the Washington Post story). Only Senator Reed (D-R.I.) voted against the bill; by coincidence, a few days ago the media reported that the area burned in California was equal in size to Rhode Island. And the fires continue to burn.
Mark S. Scarberry Pepperdine University School of Law -----Original Message----- From: Rick Duncan [mailto:[EMAIL PROTECTED] Sent: Thursday, October 30, 2003 7:30 AM To: [EMAIL PROTECTED] Subject: Re: recusal (unintended consequences) Sandy and others: I was not intending to imply that Justice Scalia recused himself *in order to* produce a 4-4 affirmance. I am certain that he did so only because his objectivity was challenged by counselor Newdow, and there was a reasonable basis for the challenge. But I am also sure that Nino was at least amused by the prospect that his recusal might result in a 4-4 affirmance, which would be the best possible scenario for the republicans (and for breaking the deadlock on judicial confirmations). The first thing that occurred to me when I heard speculation about Scalia's recusal resulting in a 4-4 tie was how wonderful that would be from my own selfish political perspective. The thought of Senate dems falling over themselves to protect themselves against the popular backlash resulting from the Pledge affirmance was a truly wonderful thing. The filibuster would probably end quickly, and the entire country might become chief executive red (with the election map soiled only by a few spots of blue), and the decision would have no precedential effect. Although I agree with Sandy that the republic would be improved if some Justices were impeached, I doubt if Scalia's recusal is grounds for impeachment. Sandy can continue to pray (or chant) together with Pat Robertson for the early removal of one justice or another. I will leave that to them while I continue to chuckle over the possibility of a 4-4 affirmance. Cheers, Rick Duncan --- Sanford Levinson <[EMAIL PROTECTED]> 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 ===== 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/
