Justice Scalia was right to recuse himself in the Pledge case

[Update (Tuesday, March 9, 2004, at 7:45pm):   Near the end of an article she published today entitled "Fighting Words: Leave Scalia Alone," Slate senior editor Dahlia Lithwick linked my post here from October 2003 via the concluding three words in a sentence in which she wrote: "And in a perfect world, I might also ask that justices limit their speeches to scholarly, rather than advocacy groups, as suggested here."

I'm always glad to be linked, and welcome those of you visiting my humble blog via Ms. Lithwick's link.  But  you'll look in vain for any suggestion in this post, or elsewhere in my blog, that Supreme Court Justices (or other judges) ought to "limit their speeches to scholarly, rather than advocacy groups."  I didn't say or imply or suggest that, and in fact I don't agree with the proposition. 

What I did say at one point in my post below was that Justice Scalia's public statements to the Knights of Columbus' "Religious Freedom Day Rally"about the Newdow Pledge of Allegiance case — which was then pending before the Ninth Circuit, and is now pending in the Supreme Court — probably didn't fit within the exception to Canon 3A(6)'s prohibition against commenting "on the merits of a pending or impending action" for "scholarly presentation[s] made for purposes of legal education."  I argue below that Justice Scalia was therefore right to recuse himself in Newdow, and that he almost certainly did so based on Canon 3A(6), even though the Code of Conduct for United States Judges within which Canon 3A(6) is contained does not, by its terms, apply to the Justices of the Supreme Court.  I further argue that Scalia almost certainly did not base his self-recusal in Newdow on 28 U.S.C. § 455(a), which is the statute now relied upon by those insisting (erroneously, I believe) that he ought to recuse himself in other litigation before the Court that involves Vice President Cheney (in his official, not personal, capacity).

For what it's worth, I actually agree in this instance with the main thrust of Ms. Lithwick's article — that is, that Supreme Court Justices aren't proscribed from speaking on hot legal topics to advocacy groups on penalty of having to recuse themselves from cases involving those issues.  But as I conclude below, they should only "speak about specific pending cases — as opposed to their speaking generally about the law and the Constitution — from the bench when they're ruling on those specific pending cases."

Further comments on this topic are welcome, but please leave them on the new post I've put up.  My original post from October 23, 2003, follows:]

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With respect to the propriety or necessity of Justice Scalia's self-recusal from the US Supreme Court's consideration of the Newdow decision from the Ninth Circuit{note1} regarding whether "under God" may properly be part of the Pledge of Allegiance, I find myself reacting rather strongly to a subsidiary point in a well-tempered argument in National Review Online between lawyer Robert D. Alt ("a Fellow in Constitutional Studies and Jurisprudence at The John M. Ashbrook Center for Public Affairs at Ashland University") and Dr. Matthew J. Franck (chairman of the political science department at Radford University in Virginia). 

In his article entitled "The Thin Law Line:  Judicial Catch-22," Mr. Alt explains that

Justice Scalia did not articulate why he recused himself from the pledge case, but it is widely understood that he did so because of a speech he delivered in Fredericksburg, Virginia in January. In his speech commemorating the 226th anniversary of the Virginia Statute for Religious Freedom, Scalia suggested that the Ninth Circuit's pledge opinion was a prime example of the courts' excessive zeal in keeping God from government.

Mr. Alt explains that there are "special limits placed on what [judges] may say by the judicial codes of ethics and by recusal statutes," and uses Justice Scalia's self-recusal{note2} as an example of their normal operation.  In other words, he assumes that Justice Scalia's decision not to participate in this case was correct (or at least permissible and readily understandable).  Instead, the main thrust of his article is that these "special limits" also justify, and indeed compel, the refusal of judicial nominees to answer "very specific questions about legal issues which are likely to come before their prospective courts" during their Senate confirmation hearings.

In his reply entitled "Recusal Absurdity," however, Prof. Franck disagrees that these rules ought to be permitted to screen judicial nominees from this probing inquiry — and to begin that broader argument, he challenges the premise that Justice Scalia was obliged to recuse himself in the Newdow case. 

I'm not prepared yet to address the broader argument regarding judicial nominees.  But I'm fairly certain that Prof. Franck — a well-educated and good writer, but apparently a nonlawyer — profoundly misunderstands the relevant federal statutes, a quasi-statutory ethical code, and the interpretive caselaw.  Because of that misunderstanding, he effectively trivializes them — to the profound potential disservice of his readers. 

Section 455 disqualifications when "impartiality might reasonably be questioned"

Prof. Franck correctly quotes one of the relevant statutes and the relevant provision from the appropriate ethical code:

Title 28, section 455(a) of the U.S. Code reads, "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." And Canon 3A(6) of the "Code of Conduct for United States Judges" reads, "A judge should avoid public comment on the merits of a pending or impending action."

But he goes astray immediately afterwards, when he writes:

The first of these, which is actually law (though of doubtful enforceability where life-tenured judges are concerned), should be understood as speaking to the impartiality of a judge regarding the parties to a case, not the legal issues that a case may raise. Indeed, every subsequent part of the section is couched in exactly such terms — avoiding conflicts of interest owing to the identity of the parties, not the opinions judges may have of the legal questions they raise.

Let's start with his parenthetical aside regarding section 455(a) — "(though of doubtful enforceability where life-tenured judges are concerned)."  Just ask U.S. District Judge Thomas Penfield Jackson whether he's doubted section 455(a)'s enforceability since the US Court of Appeals for the D.C. Circuit used it to disqualify him from presiding over the proceedings on remand after the appeal of  the government's massive antitrust case against Microsoft.  Or ask Bill Gates how happy he is to have a different judge presiding over the "remedy" phase of that case now.  Or simpler still, just look at the top of the window in which you're more than likely reading this, where it probably still says "Microsoft Internet Explorer," and recall that Judge Jackson's ruling would have busted up Microsoft into three different companies.{note3}   I wouldn't call section 455(a) an inconsequential or "doubtfully enforceable" statute. 

If Prof. Franck meant only to say that it's unlikely that such violations will give rise to successful impeachment proceedings, that is probably true, even in extreme examples.  But as I discuss below at more length (in connection with another statute that Prof. Franck doesn't mention), there is much that can affect a life-tenured judge short of impeachment.  And for proud men and women of the caliber who become federal judges — a class of citizens not noted in general for their diminished egos — even the sort of judicial mortification that Judge Jackson suffered (and deserved to suffer) can be substantial.

Prof. Franck is also simply wrong in arguing that section 455 "should be understood as speaking [only] to the impartiality of a judge regarding the parties to a case, not the legal issues that a case may raise."  Justice Scalia himself confirmed this in his majority opinion in Liteky v. United States when he noted that Congress' "1974 revision made massive changes" to section 455, and in particular that section 455(a) "was an entirely new 'catchall' recusal provision, covering both 'interest or relationship' and 'bias or prejudice' grounds."{note4}   Too strong a "bias or prejudice," even if not particularized as to any of the specific parties in a given case — when "such a high degree of favoritism or antagonism as to make fair judgment impossible" — can still, albeit very rarely, be grounds for recusal.{note5}   

Prof. Franck quotes some colorful language from Lee v. Weisman{note6}  — in which the Court majority declared prayers at high school graduations to violate the Establishment Clause — and in which Justice Scalia sarcastically opined that the Pledge, with its "under God" affirmation, "ought to be the next project for the Court's bulldozer."  From this, Prof. Franck argues that "Justice Scalia is already amply on record about the pledge and 'under God,' and in much more comprehensive ways than anything he said in Fredericksburg."  He continues:

If Scalia has expressed such an obvious hostility to a judicial ban on "under God" in an actual case, what on earth can be objectionable about the far-less copious remarks he made in January, when Newdow was only a remote possibility on the Court's docket? Only the most artificial distinction between on-the-bench and off-the-bench expressions of opinion can sustain his recusal.

Prof. Franck is again wrong, however, because the distinction between opinions stated on and off the bench is very central to the entire history of caselaw on recusal and disqualification.  Again from Liteky:

[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion.  In and of themselves (i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extrajudicial source is involved.{note7}

 

Stop and think about it for just a minute, Prof. Franck:   In every single case, there's a loser and a winner.  In every single case, the loser can point to something that the trial judge said from the bench which demonstrated "hostility" toward him or his case — even if it's nothing more than saying, "You lose."  And when a judge has been on either the trial or appellate bench a few years, the potential for that kind of showing of "bias" and "prejudice" grows at a steady, inexorable clip.  If it were permitted for statements from the bench to be a basis for showing disqualifying bias, judges would become increasingly subject to disqualification as they became more experienced, and the judicial system would collapse under the weight of disqualification motions.  Because of this distinction, then, between on- and off-the-bench statements of opinions in the caselaw regarding disqualification, not even desperate death penalty lawyers move to disqualify Justices Rehnquist, Scalia, or Thomas on the basis of prejudice, even though you could make quite an argument that their statements from the bench demonstrate a strong predisposition in those cases; nor do state attorneys-general move to disqualify Justices Stevens on opposite grounds of implacable hostility to the death penalty. 

Statements made "from the bench" not only have the virtue of being public, but in general the rulings that they're made in connection with are themselves reviewable on their merits.  If the ruling proves to have been badly wrong, it gets reversed on appeal; if the rationale announced in an appellate opinion can't stand the test of time, it gets overruled.  They are therefore precisely the class of statements least likely to give rise to either the perception or fact of hidden and uncorrectably unfair results.  In short, there's nothing "artificial" about the distinction between on-the-bench and off-the-bench expressions of opinion.

So:   I've dumped all over Prof. Franck for misunderstanding the law of disqualifications, and for underestimating the importance and the reach of section 455.  Am I therefore asserting that section 455 was the basis for Justice Scalia's recusal?

Heh.  Well, no, actually I'm not.  As part of his discussion in Liteky of whether the 1974 revisions to section 455 had also changed previous law regarding the "extrajudicial source doctrine," Justice Scalia also made this fascinating assertion:

The fact that an opinion held by a judge derives from a source outside judicial proceedings is not a necessary condition for "bias or prejudice" recusal, since predispositions developed during the course of a trial will sometimes (albeit rarely) suffice. Nor is it a sufficient condition for "bias or prejudice" recusal, since some opinions acquired outside the context of judicial proceedings (for example, the judge's view of the law acquired in scholarly reading) will not suffice. Since neither the presence of an extrajudicial source necessarily establishes bias, nor the absence of an extrajudicial source necessarily precludes bias, it would be better to speak of the existence of a significant (and often determinative) "extrajudicial source" factor, than of an "extrajudicial source" doctrine, in recusal jurisprudence.{note8}

The bit I've bolded is clearly dicta, but it certainly makes it unlikely that Justice Scalia disqualified himself in Newdow because he'd already made up his mind in the abstract about legal issues pertaining to the Pledge.  In other words, it almost certainly was not section 455 and his "general pre-existing biases" that prompted Justice Scalia to recuse himself.  Contrary to Prof. Franck's argument, the Virginia speech did matter, and indeed, is almost certainly the explanation for the recusal.  The relevant ethical rules — and another statute that Prof. Franck may not have even known about — strongly support Justice Scalia's decision to recuse himself.

Canon 3A(6)'s prohibition against judges commenting on "pending or impending" cases

Perhaps Professor Franck is one of those "people who have not served on the bench [who] are often all too willing to indulge suspicions and doubts concerning the integrity of judges."{note9}   He seems to think that the Code of Conduct for United States Judges is something that can be shrugged off or evaded pretty much at will:

The Code of Conduct, by contrast, is not a law at all, but a set of admonitions adopted by the judiciary to guide its own members. (Notice, after all, the "should" language, as opposed to the "must" of the U.S. Code.) And while Canon 3A(6) cautions against "public comments on the merits" of a case, the word "impending" is terribly vague. Was Newdow an "impending" case before the Supreme Court on January 12? Maybe, maybe not. (Many observers expected the Ninth Circuit to grant an en banc rehearing and reverse the three-judge panel, in which case it is virtually certain there would have been no Supreme Court review.) And the same canon goes on to specifically exempt any "scholarly presentation made for purposes of legal education," which is exactly what Scalia was doing that day in Fredericksburg.

It's true enough that the Canons are “aspirational goals” which cannot by themselves “be the standard for judicial discipline,” and that  “it is not intended that disciplinary action would be appropriate for every violation of [the Code’s] provisions.”{note10}   But serious violations of the Code can be, and have indeed been, treated as being "conduct prejudicial to the effective and expeditious administration of the business of the courts" under 28 U.S.C. § 372(c), which was recodified in 2002 in substantially similar form at 28 U.S.C. § 351(a).  Prof. Franck didn't mention, and perhaps was unaware{note11}, of this statute, but it indeed provides sharp statutory teeth behind the Code — teeth that can lead not only to a judge's public reprimand or censure, but also to preventing him from hearing additional cases, certifying him as disabled, or making a formal request that he retire, see 28 U.S.C. § 354(a)(2)(A) & (B), and potentially to referral to the House of Representatives for impeachment proceedings, see 28 U.S.C. § 355.  So mere "admonition" or not, Canon 3A(6) ought to be taken very seriously indeed by any judge.

Nor do I find "impending" — the dictionary definition of which is "To be about to occur" — to be "terribly vague."  Rather, since the Canon says "pending or impending," it obviously intends to draw some sort of distinction between what's already on file in a particular court (pending) and what's reasonably foreseeable to be on file in the near future (impending).  Justice Scalia's speech was in January of this year — and the Ninth Circuit denied rehearing en banc in February, meaning that cert petitions ended up being filed within weeks of his speech.  How much more "impending" could the case have been?

And its recent televised star turn in the Shelley case notwithstanding, I think you'd have found it hard to get even money among knowledgeable betters on whether the en banc Ninth Circuit was going to overturn its panel's decision in the Pledge case.  But whether regardless of whether it did or didn't, the odds were very substantial that the case would have been before the Supreme Court soon enough on a petition for cert by one side or the other — whichever ended up losing in the Ninth Circuit — and even if cert had ended up being denied, that would still be a decision that Justice Scalia would have been expected to participate in and vote upon.   

I also have considerable doubt whether the "Religious Freedom Day Rally" at which Justice Scalia was speaking is the sort of "scholarly presentation made for purposes of legal education" intended within the exception in Canon 3A(6).   The Knights of Columbus is a fine organization and certainly includes some smart folks, and I'll grant you that the general purpose of the gathering had to do with celebrating the Constitution, which is doubtless why they invited Justice Scalia to speak.  But I think that in general, to promote the purposes of the Code, exceptions to it ought to be read narrowly, and "legal education" and "scholarly presentation" imply to me an audience of lawyers or law students — a speech at a continuing legal education seminar, a lecture at a law school, certainly a law review article, or maybe, on the very outside limits, a speech at a bar convention, but only if it's given before happy hour.

In short, Prof. Franck's suggestion that Newdow didn't fit within the plain scope of Canon 3A(6) is just silly.

Conclusion:   Neither judges nor poli-sci profs ought to be looking for loopholes to avoid the rules of judicial ethics

Prof. Franck winds up with a pretty good pitch:

To speak as plainly as possible, what we want in our federal judges are people who have strong opinions about the law and the Constitution. Do we really want to live by a fiction that says that their only opportunities to speak those opinions should occur on the bench in the decision of cases?

But he's missed the point again, rather badly.  What Justice Scalia did was not just speak strongly about the law and the Constitution while off the bench.  And he didn't just speak about the Pledge in the abstract.  He specifically spoke about an active case — a hugely controversial and highly publicized one that was still "pending" in the Ninth Circuit and therefore "impending" potential review by his own court.  In hindsight, he probably wishes he hadn't done so, and he frankly ought not have.  But having made the blunder, he's taken the honest and ethical path in recognizing its consequences.

I'm sure Prof. Franck is a fine political scientist, and I see that he's written a book about the Supreme Court and co-edited another; despite being an academic, he probably is not a wild-eyed liberal, and he appears to favor judicial conservatism from the reviews I've read of his own book.  But with considerable and due respect to him, I think that anyone who actually studies, cares about, and practices legal ethics in general — or judicial ethics in particular —  is likely to be unimpressed with his attempt to play loophole-spotting lawyer.   The Code of Conduct for United States Judges isn't "fiction," nor is 28 U.S.C. § 351.  And I for one am perfectly content, and indeed much prefer, to live in a society whose rules only permit judges to speak about specific pending cases — as opposed to their speaking generally about the law and the Constitution — from the bench when they're ruling on those specific pending cases.

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{note1}Newdow v. U.S. Congress, 292 F.3d 597, subsequent panel opinion denying mother's motion to intervene, 313 F.3d 495, subsequent panel opinion denying Senate's motion to intervene, 313 F.3d 500 (9th Cir. 2002), rehearing & rehearing en banc denied with dissenting opinions, 328 F.3d 466 (9th Cir. 2003) (en banc), cert. granted sub nom. Elk Grove Unified School District v. Newdow, 71 U.S.L.W. 3724, 2003 WL 21134177 (Oct. 14, 2003).

{note2}Purists would assert that the term "self-recusal" is somewhat redundant, since "recuse" is ordinarily used only to describe a judge's action in removing himself from consideration of a matter; removal of a judge by someone other than himself is more commonly referred to as "disqualification."  I justify the redundancy here because it's important to note that Justice Scalia's action was voluntary, not compulsorily imposed upon him by his fellow Justices.

{note3}United States v. Microsoft Corp., 253 F.3d 34, 107-18 (D.C. Cir. 2001).  The D.C. Circuit struggled with whether Judge Jackson's improprieties also justified reversing all his findings of fact and the "liability" phase of the trial, but stopped short of that.  Still, Judge Jackson had a history of trying to circumvent reversals when he got cases back on remand, and indeed had already done so, and bragged about it to the press, after an appeal of a preliminary injunction in that very case.

{note4}510 U.S. 540, 548 (1994) (Scalia, J.). 

{note5}Id. at 555.  As an example of "judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases,"  Justice Scalia cited a "World War I espionage case against German-American defendants," Berger v. United States, 255 U.S. 22, 28-29 (1921), in which these comments of the trial judge showed a disqualifying degree of bias: 

"If anybody has said anything worse about the Germans than I have I would like to know it so I can use it....  One must have a very judicial mind, indeed, not to be prejudiced against the German-Americans in this country. Their hearts are reeking with disloyalty. This defendant is the kind of a man that spreads this kind of propaganda, and it has been spread until it has affected practically all the Germans in this country. This same kind of excuse of the defendant offering to protect the German people is the same kind of excuse offered by the pacifists in this country, who are against the United States and have the interests of the enemy at heart by defending that thing they call the Kaiser and his darling people. You are the same kind of a man that comes over to this country from Germany to get away from the Kaiser and war. You have become a citizen of this country and lived here as such, and now when this country is at war with Germany you seek to undermine the country which gave you protection. You are of the same mind that practically all the German-Americans are in this country, and you call yourselves German-Americans. Your hearts are reeking with disloyalty. I know a safe-blower, he is a friend of mine, who is making a good soldier in France. He was a bank robber for nine years, that was his business in peace time, and now he is a good soldier, and as between him and this defendant, I prefer the safe-blower.

{note6}505 U.S. 577, 639 (1992) (Scalia, J., dissenting).  [I've corrected a typo in the spelling of this case name, per the comment below, since this post was originally published.—ed.]

{note7}510 U.S. at 555 (citation omitted).

{note8}Id. at 554-55 (italics in original; boldface added by Beldar).

{note9}Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864-65 (1988).

{note10}In re Charge of Judicial Misconduct, 62 F.3d 320, 321 (9th Cir. 1995) (Wallace, C.J.).

{note11}There's actually another statute he missed, 28 U.S.C.  § 144, but it's more or less been interpreted into a procedural trigger for § 455(a).  I'll cut him some slack on that miss.

Update (Fri Feb 6, 2004):  Since I wrote this piece, of course, there's been a much bigger to-do about whether Justice Scalia ought to recuse himself, or be disqualified, in a case involving Vice President Cheney because he went on a duck hunting trip with Vice President Cheney last fall.  Some of the same legal issues, statutes, and caselaw are involved in that dispute, but I'll not try to delve into it here.  I do feel obliged to make a rather important point about Newdow and Canon 3A(6), however, that I didn't make in the original post:  As a technical matter, the Code of Conduct for United States Judges, by its terms, does not apply to the Justices of the Supreme Court — they're deliberately excluded from the list of judicial officers covered by the Code: "United States Circuit Judges, District Judges, Court of International Trade Judges, Court of Federal Claims Judges, Bankruptcy Judges, and Magistrate Judges."  Consistent with this and with long-standing Supreme Court practice, Justice Scalia's decisions whether to recuse himself in Newdow and the case involving Vice President Cheney were his alone to make; and I continue to believe that his decision in Newdow is explained by his recognition that he'd run afoul of Canon 3A(6), and that he felt himself ethically bound by that Canon even though he's not technically bound by the Code in which it appears.