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. An
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
