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Saturday, March 20, 2004

Justice Scalia's refusal to recuse

Justice Scalia's twenty-one page memorandum opinion explaining his refusal to recuse himself in the Judicial Watch/VPOTUS case is comprehensive, persuasive, and masterful. The money quote (so to speak; emphasis in original):

The question, simply put, is whether someone who thought I could decide the case impartially despite my friendship with the Vice President would reasonably believe that I cannot decide it impartially because I went hunting with that friend and accepted an invitation to fly there with him on a Government plane. If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined.

The single part that I disagree with, however, was when he suggested (at pp. 3-4) that if he were a mere circuit judge, he might have gone along with the recusal motion because his place would promptly have been taken by another circuit judge, and there wouldn't have been the same possibly outcome-determinative change in the nature of the tribunal deciding the case.

He's right, of course, that circuit judges are more numerous, and when one takes himself off a particular case, he or she usually can be easily enough replaced by another. Indeed, the courts of appeals — especially those that are overloaded and backlogged — frequently invite a district judge to join a three-judge oral argument panel "by designation" in order to stretch their manpower resources.

But even circuit judges have, I believe, an institutional duty to hear the cases to which they're assigned in the ordinary course, and to avoid giving litigants a veto — which would be the effective result if judges always "resolve[d] any doubts in favor of recusal."

When I clerked during the last days of the "old Fifth Circuit" twenty-plus years ago, I assisted my judge in writting a dissenting opinion for the minority of the then-twenty-five judge en banc court. A thirteen-judge majority voted to reverse the district court decision, but my judge's dissent was concurred in by eleven other judges. One judge from the majority recusing from the case would have altered the outcome; had the final vote been 12 to 12 instead of 13 to 12, the district court's judgment would have been automatically affirmed by the equally divided en banc court. Because every circuit court panel opinion is theoretically subject to review by the full court sitting en banc, a circuit judge never knows in advance when his or her recusal may result in exactly the same institutional disruption that, in part, formed the basis for Justice Scalia's reluctance to recuse himself at the Supreme Court level.

More importantly, whether at the district or court of appeals levels or before the Supreme Court, litigants who file recusal motions usually do so tactically, rather than for reasons of undiluted principle; the Sierra Club, for instance, doubtless thinks its odds of winning would be improved if Justice Scalia in particular were bumped off its case. That's one reason the disqualification statute — 28 U.S.C. § 455(a), with its "might reasonably be questioned" language that superficially looks awfully broad and subjective — has in fact (in all those cases the Sierra Club's brief didn't cite) been interpreted very narrowly. Otherwise, you encourage litigants to play judge-shopping games with the system in hopes of grasping an advantage.

I was also unsurprised but gratified to see this statement:

Even so, recusal is the course I must take — and will take — when, on the basis of established principles and practices, I have said or done something which requires that course. I have recused for such a reason this very Term. See Elk Grove Unified School District v. Newdow, 540 U.S. ___ (cert. granted, Oct. 14, 2003).

Toldja so. The "established principle" referenced in this mea culpa about the Newdow Pledge of Allegiance case, I'm now even more convinced, was not section 455(a), but rather that articulated by Canon 3A(6) of the Code of Conduct for United States Judges: "A judge should avoid public comment on the merits of a pending or impending action." That the Code does not, by its own terms, apply to Supreme Court Justices doesn't mean that they should ignore its "established principles"; and as I previously wrote, having violated one of those principles by speaking in public about that specific case while it was an impending action before the Supreme Court, Justice Scalia was right to recuse himself in it, notwithstanding the significant possibility that his doing so may prove outcome-determinative.

Posted by Beldar at 02:32 AM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Justice Scalia's refusal to recuse and sent a trackback ping are listed here:

» Law School Roundup #1 from Notes from the (Legal) Underground

Tracked on Mar 21, 2004 7:53:29 AM


(1) TP made the following comment | Mar 22, 2004 9:22:49 AM | Permalink


Here's my take on this. The argument is that "because J. Scalia went on a personal vacation alone with a litigant set to appear before him, he should recuse himself."

I have no problem with J. Scalia rejecting the conclusion of the argument based on the legal standards for recusal, though I do not think it is nearly so cut-and-dried as you do.

What bugs me are the legions of thinkers denying there is any "mere appearance of impropriety" in the premises of the argument, in J. Scalia taking a personal vacation alone with a litigant set to appear before him.

If that does not merit recusal, that's fine, but it is flabbergasting to me to hear so many well-intentioned and bright people sit there and seriously attempt to persuade me that reasonable people could not see any appearance of impropriety in this situation, or that this is really analogous to giving a speech before some kind of interest group.

(2) TP made the following comment | Mar 22, 2004 11:54:48 AM | Permalink

Sorry to be a comment hog, but I'd also be interested in a response, bloviating or otherwise, to this post, which gets into the merits of the legal argument:


As Mr. P and others have noted, J. Scalia actually changes the standard later in his memorandum from "whether a reasonable person might question impartiality" to "whether a reasonable person WOULD question impartiality."

That's a pretty significant difference, IMO.

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