March 20, 2004
Recusal and Reasonable Questions
by Nick Morgan
March 20, 2004 06:03 PM
This NY Times editorial is a little scathing, and a little unfair to Scalia's memorandum refusing to recuse himself in Cheney v. U.S. District Court. Language in the editorial like "angry 21-page memorandum fired off on Thursday" and "[Scalia] also points out, rather sarcastically, that he and the vice president neither shared a room nor a hunting blind" do not, in my view, approximate the tone of the opinion.
Will Baude, Dahlia Lithwick, and other commentators are probably right that Scalia's choice was more or less prudent, and justifiable from the common-sense and pragmatic viewpoint of judicial house-keeping. But the legal standard set forth in 28 U.S.C. 455(a) does not seem to permit that kind of de novo decision making:
Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
Scalia's opinion convinces me that his impartiality could reasonably be trusted, but does he really mean to suggest that every person who thinks this looks bad is unreasonable to think so? The truth is, Scalia's impartiality has been questioned. And even though Scalia is right that
[a] rule that required Members of this Court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling
it's unclear why the inconvenience of recusal should be relevant to the question whether doubts of partiality are "reasonable." This kind of argument is especially surprising from Scalia, whose textualism would normally keep him afield of such policy arguments, and instead find that statutes mandating inconvenient results should be fixed by Congress, not the courts.
I'm not suggesting that the statue clearly mandates a particular result, but I think Scalia was a bit disengenuous, as the NY Times editorial suggests, in "refusing to acknowledge the reasonableness of questions about his impartiality."
Thanks to Volokh and Mr. Ichiban for the pointers.
I wouldn't say Justice Scalia was being disengenuous. Although the phrase "reasonably be questioned" seems broad in terms of common usage, it's still a statute that is being interpreted and not a regular sentence on a page. Keeping in mind that I didn't read the entire opinion and skimmed briskly over the parts I did read, I think Scalia's incredulity is focused at the Sierra Club's relative lack of legal citation to case law in fleshing out the range of the statute. Rather, as he points out, the main thrust seems to revolve around newspaper articles.
I'm not saying the statute has some mystical extra-textual meaning, however, it's fair to say that the ethical governance of the judiciary is more complex and intricate than what the average Joe's opinion is on Scalia's impartiality. In other words, there's a context to the statute that most laymen don't consider -- a context that is provided by legal precedent. It looks like the Sierra Club, realizing it didn't have legal precedent on its side, tried to dump the interpretation of the statute into the court of public opinion.
Consider some of Justice Scalia's closing thoughts: "The question, simply put, is whether someone who thought I could decide this 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."
I can see how Scalia's ever-present rough candor could be viewed as snideness here, however; what he appears to be saying is that given the context borne out by the case law and past practices and relationships between Supreme Court Justices and other high ranking government officials, the contention of impartiality really is unreasonable.
Moreover, I find it completely sophomoric that the Sierra Club actually stated that Scalia was the "fodder for late-night comedians" in their recusal motion. Scalia is right, if that nonsense is the barometer of impartiality of a member of the federal judiciary then this country really is in deeper trouble than he or I imagined.
Lanny Davis and Judge Starr are debating the Scalia recusal issue tonite on :Hannity & Colmes: (Fox News). Judge Starr is always interesting and of course completely connected. I'm guessing this will be somewhat informative.
I had some discussion here: