There's an interesting comment thread going on in my recent Scalia post that i'd like to open up to a wider discussion. Here's what's happened so far:

First, Coyote brought up a pending case involving Dick Cheney, in which he believes Justice Scalia should recuse himself.

hmm,

maybe the kids at amherst are protesting the death of credibility of a supreme court justice?

face it, the outright refusal to step away from the cheney case does tend to raise an eyebrow or two.

there is ex parte and then there is EX PARTE..

the supreme court should be far above all appearances of impropriety, and spending a weekend with someone who has a lot to lose in a case that might be decided by your vote does indeed smell a bit inappropriate.

scalia's actions have nothing to do with left or right. the point is that he is tossing his own credibility out the window by engaging in ex parte communication with someone who has a case in his court.

there are two possible outcomes:

he finds for cheney, thereby removing any chance that his opinions are not seen as partisan political crap. this only serves to taint his leagacy. i'm sure scalia does not want his legacy to be one that screams "bought and paid for".

or

he finds against cheney in order to save face, thereby screwing the conservative cause of keeping the vp's energy discussions secret. i'm pretty sure that no one on the republican side of the fence wants those dicussions made public, as it would indeed add to list of problems facing the current administration.

if anything, consevatives should be very concerned about such a breech, as any short term victory (cheney winning his case) would be grossly overshadowed by the fact that this inappropriate behavior might well take the teeth out of any future rulings scalia might make. not to mention that the whole thing only serves to chip away at the honor and reputation of the supreme court. those nine are supposed to be above back room politics..

if i were a conservative, i'd be worried shitless that scalia will save his own reputation rather than look like a corrupt ass in the history books.

Judges hate to recuse themselves even when the conflict seems obvious. It's sad. Take for instance Judge Warren, who's going to hear the injunction case against what Mayor Newsom is doing in San Francisco. Judge Warren is gay. Conflict? He apparently doesn't think so.

Annika, does that line of reasoning mean that Thurgood Marshall should have recused himself from hearing civil rights cases? Or that O'Connor and Ginsburg should recuse themselves from abortion cases? My dear girl, whom I love and admire, you come close to an unpleasant ad hominem argument there...

Annie-

maybe judge warren should recuse himself if he was spending the weekend with the mayor of san francisco, chasing boys or whatever.. your intolerance and prejudice are showing here :-(.

you assume that judge warren's sexual preferances will cloud his judgement when it comes to gays?

thats exactly like saying that the revered scalia would not be able to judge fairly on a case involving mr bush sr's son, you know, the guy who was VP when Ronnie Regan appointed him to the court..

im with Hugo on this one.

i tried to clarify my position.

You don't understand the purpose of recusal. It doesn't matter whether Warren is influenced or not, if he upholds the marriages, his decision will be tainted by the perception of a conflict, the perception of bias, and for that reason he should recuse himself.

Recusal is required not because of a fear of actual bias as much as a concern for perceived bias, which casts doubt on the independence of the judiciary. Apply your own reasoning to Scalia then, why don't you. If he tells us he won't be biased, why shouldn't you believe him and just leave it at that? You said it yourself, whichever way he decides will be tainted because of the perception. That's why he should recuse himself.

It is certainly reasonable for somebody to believe that a gay judge, who is at present personally excluded from participation in marriage, might have a personal interest in the outcome of a case involving the expansion of marriage's definition. He stands to personally gain or lose a fundamental human right, depending on his decision.

The Federal Code of Judicial Conduct says: "Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The California Code of Judicial Ethics says the same thing and adds that "a judge shall disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no actual basis for disqualification."

And i'm tired of being called prejudiced when it comes to this issue. i support gay marriage. This is a huge issue and i want to see it done right, especially since most of the country is against it. How does that make me prejudiced?

Oh, and, Thurgood Marshall, a personal hero of mine, didn't judge cases like Brown vs. Board of Education because he wouldn't have been allowed to! That's why he argued them instead. And if O'Connor and Ginsberg were pregnant and planning to have an abortion at the time they were hearing an abortion case, absolutely, they should recuse themselves.

First: I know the question was rhetorical, but I can't resist responding. The last time Scalia voted with the majority was January 26--the last time the Court issued opinions. Scalia's most famous for his dissents, but he doesn't always dissent!

Second: I think the case for recusal for Scalia is much stronger than for Warren. There has to be a reasonable limit on what factors require recusal. Every judge has some interest in most cases, even if it's only in the sense that he agrees or disagrees with the legal principle(s) pertinent to the case. The fact that a judge may have a personal policy preference on an issue does not automatically give rise to a reasonable inference that the judge will allow that preference to improperly influence his decisions (imho, of course). I think the fact that a judge is a member of a minority group is too weak a basis, without more, for requiring that judge to recuse himself from cases involving that minority. It requires us to infer something about the judge's preferences based on his class membership (always an iffy proposition), AND to assume that this speculative, inferred preferences will improperly influence him. By that rationale, it would seem to me that no judge who's a member of a racial minority should ever sit in an employment discrimination or similar civil rights case brought by a minority (or at least a minority from the same group as the judge), no woman judge should ever sit in a sexual harassment case brought by a woman, and very few judges should ever sit in cases involving age discrimination (since judges tend to be older folks). Similarly judges who are devout adherents of most mainstream religions (like Scalia) shouldn't sit in cases involving asserted gay "rights" (since nearly every orthodox religion implicitly or explicitly condemns the idea of gay marriage), and judges who are gun owners shouldn't sit in cases construing the Second Amendment or state equivalents. Etc., etc., ad nauseum.

Of course these are ultimately metaphysical arguments. There's no way for us to know to a certainty what is going on or will go on in a judge's head, so typically all we can do is make educated guesses about what's likely to unduly influence him/her. But those guesses can't be knee-jerk; there has to be a little reasoned analysis. It's not "unreasonable" in the common sense of the world to think that membership in a general class is prima facie evidence of potential bias significant enough to require recusal. But I think it's "unreasonable" in any sense of the word that takes into account the realities of our judicial system.

Scipio added some background:

Chief Justice John Marshall refused to recuse himself from several cases that he had been involved in; one where he had been a lawyer for one side; another where he had been a judge on the case previously; and a third where he had a demonstrable pecuniary interest in the case.

Annie-

What i meant about the prejudice is along the lines of what Matt has written. you pre judged that warren cannot make a just ruling because he belongs to the minority involved in the case.

the whole anology is some distance from scalia's predicament, when a week-end long ex parte sesssion with someone who has a case in front of him is most certainly a valid reason for a recusal.

but.. from the arguments you have made, it appears that you would indeed agree that scalia's best course would be to recuse himself.

But still, i think my opponents are missing my point. It's the perception of bias and the perception of conflict that requires recusal. It doesn't matter whether Warren can give an unbiased ruling. i'm not arguing one way or another whether he is in fact biased. It doesn't matter. He stands to gain from the outcome of the case. That's obvious. At present, as a gay man, he does not have the right to marry another man. It is now within his power to help give himself that right. That's a conflict. He should recuse himself because the perception of judiciary independence and non-bias is at risk if he doesn't.

Ask youself this. If you were a lawyer for the plaintiffs, would you consider appealing an adverse ruling on the injunction, based on Judge Warren's conflict? Of course you would. You'd be an idiot not to. If you support gay marriage, why give the plaintiff's that appealable issue?

What if this were about money? Maybe you'd be able to recognize the obvious conflict better. What if Judge Warren owned a '92 Taurus and a class action case came before him, brought by plaintiffs who claimed that all owners of '92 Ford Tauri deserved compensation for some defect. If the judge ruled in their favor, he would gain a benefit that he did not have before hearing the case. Should he recuse himself then? What if you and i both agreed that Judge Warren is a man of integrity who would not let his personal stake in the outcome affect his decision? The answer is clear. He should still recuse himself.

Matt said "The fact that a judge may have a personal policy preference on an issue does not automatically give rise to a reasonable inference that the judge will allow that preference to improperly influence his decisions." Of course. But when it is within a judge's power to give himself a benefit that he would not otherwise have, there is a reasonable question raised about his impartiality. The standard is not the actual existence of partiality or bias. How could one ever prove that? It's an objective standard. Does it look like he might not be impartial. If the judge stands to gain personally by the outcome, i believe the conflict is obvious.

Matt also makes other analogies, such as "it would seem to me that no judge who's a member of a racial minority should ever sit in an employment discrimination or similar civil rights case brought by [that] minority . . . no woman judge should ever sit in a sexual harassment case brought by a woman . . ."

Those examples are different than the situation with the gay marriage injunction. A woman judge does not stand to personally gain anything or lose anything by her rulings in a sexual harrassment case involving an individual plaintiff. Only the plaintiff can gain or lose, monetary damages in that case. In a sense, a woman judge gains when the rights of all women are upheld, but i agree that's not enough to require recusal. How could the system be arranged otherwise?

My point is, as a supporter of gay marriage, i want to see it done right. Ideally i'd have liked to have seen this kind of social progress made through the political peocess. By that i mean through acts of a legislature of elected representatives, not unelected judges. But, i'm realistic, too. This country is a long way from expanding the right to marry by legislative means. By going through the courts, Newsom and his supporters have forced the issue, and if it has to happen that way, i'd like to see it done with as much legitimacy as possible.

Posted by: annika at 11:10 AM | Comments (14) | Add Comment
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