March 22, 2004

Law Professors Respond to Scalia's Memo

by Nick Morgan


    The [New York] Times invited six law professors specializing in legal ethics to evaluate Justice Scalia's legal arguments: Stephen Gillers of New York University, Monroe H. Freedman of Hofstra, Steven Lubet of Northwestern, James E. Moliterno of William & Mary, Ronald D. Rotunda of George Mason and G. Edward White of the University of Virginia. The professors largely passed over Justice Scalia's analogies to past socializing between high-ranking Washington officials and Supreme Court justices; they said the resignation of Justice Abe Fortas in an ethics scandal in 1969, Watergate and amendments to the federal judicial disqualification law in 1974 had altered the legal terrain. But there was plenty more to chew over.

    Following are excerpts from Justice Scalia's memorandum, followed by comment from the professors.

The article doesn't say whether any of these professors ultimately think Scalia made the right, or wrong decision [edit: Alan in comments points out what I overlooked: "Here's White of UVA: 'On balance, I think that it was appropriate for Scalia to decide not to recuse himself' "], but many of the comments are quite critical, so I'm guessing some of them do, in fact, question Scalia's impartiality. Read the whole thing if you've been following the issue.

(Link via Houston's Clear Thinkers via Professor Yin.)

March 22, 2004 06:50 PM | TrackBack

Sounds sort-of like an Internet symposium on a current issue by bringing together legal scholars to talk about the issue . . .

Where'd I hear about such a thing? I can't quite place it . . .

Posted by: Chris Geidner at March 22, 2004 07:43 PM

Considering the expansive nature of intellectual property, maybe we should have looked into patenting or copyrighting the symposium, eh? But there's that pesky First Amendment....

Posted by: Nick Morgan at March 22, 2004 09:01 PM

Big surprise that law professors, OF ALL PEOPLE, would disagree with Scalia. What a shocker!!!

Posted by: Billy Bob at March 22, 2004 09:48 PM

Actually Nick, one of the professors does say he thinks Scalia made the right decision. Here's White of UVA: "On balance, I think that it was appropriate for Scalia to decide not to recuse himself."

But the problem I had was with Prof. Gillers' statement about Scalia's criticism of the newspapers, "It's kind of a gotcha response to withhold information and then blame people for not getting information only he knew." But it's not a "gotcha response" to call people on presenting falsehoods as if they knew them to be facts, instead of saying that they just didn't know because Scalia wasn't talking. Both Gillers and Maureen Dowd seem appalled that anyone would have the gumption to call out the press over their botched, biased reporting of this entire incident.

Posted by: Alan Robinson at March 22, 2004 10:37 PM

Thanks for the pointer, Alan--I overlooked White's bit. I edited the post accordingly.

Posted by: Nick Morgan at March 23, 2004 12:05 AM


In that duck blind
Lady Justice unveils
Her traditional blindfold
For these bonding males:
Scalia and Cheney,
Shotguns at attack,
Taking aim at Justice,

Posted by: Shag from Brookline at March 23, 2004 07:28 AM

Is that your poem, Shag? (It's funny.)

Posted by: Nick Morgan at March 23, 2004 01:19 PM

Yes it is: rhyme with reason for a change. Spread the verse - it can't get any worse.

Posted by: Shag from Brookline at March 23, 2004 05:29 PM
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