Sunday, March 27, 2011


After setting the background of the recusal motion and setting the factual matrix out of which the motion arises, Scalia rejects the presumption of recusal—which is of course not to say, “no recusal”— for the reason that, in contrast to appellate courts, no one else steps in when a SCOTUS judge recuses him or her self.

The recusal test is whether “impartiality might reasonably ne questioned. On Scalia’s narrative—the hunting party was arranged even before the cert petition had been filed—with no meaningful contact between him and Cheney, the issue boils down to one of Scalia’s friendship with Cheney. Friendship can ground recusal but not traditionally where official action is the issue before SCOTUS for that would functionally disabling given whom SCOTUS justices know. (See page 5 of his memo.) And it matters not that Cheney is a named party in the case because tradition does not make that a particularly relevant criterion and because high level officials are frequently named in suits concerning official action and because that naming doesn’t implicate the officer personally but rather officially, i.e. his office, as is the case this subject law suit.

Countermanding the allegation that Scalia proceeds crazily or deeply dishonestly is his consistent rehearsal of, and answer to, the full range of arguments put against him, transparently and fully for all to see and agree or disagree with.

The issue facing SCOTUS in the case is the power of the District Court under under certain law and whether Appeal Court should have asserted appellate or prerogative jurisdiction over the District Court. And the issue involves the question whether certain individuals were members, de facto, of a particular organization. This characterization of the issue meets the Sierra Club’s position that the case puts Cheney’s personal character on the line, thus grounding its recusal request.

Sierra Club’s argument, however, that Cheney, as head of an Energy Task Force, involved oil industry executives in his Task Force, which then made it and them subject to oversight and disclosure. But, Scalia notes, the formal pleading does not single out Cheney as involving the executives but even if it did it would have been irrelevant. The law is that disclosure is required when any private person is a Task Force member and no matter who gets them so involved. So how does Cheney’s integrity become singularly implicated given this? And of course there is nothing per se wrong or illegal in involving such executives. As to political consequences to Cheney from potential disclosure that Cheney favored business interests, that is not SCOTUS’s concern. So recusal cannot be linked to the political consequence to a party a case may entail.

The Club argued that by Scalia flying on Air Force Two he accepted a gift from a party in a pending case worth thousands of dollars. He had already bought round trip tickets before the invitation was so to fly was extended so there was no saving of money, though there was more comfortable and convenient travel. But more importantly, traditionally such social amenities extended at government expense by officials before the court in their personal capacities has neither gounded recusal nor suggestions of impropriety. Such invitation to travel is frequent and not considered unusual.

Scalia notes that the Club cites no precedent involving official action cases and or involving remotely similar circumstances. In a footnote, Scalia does refer to case cited by the Club involving the same disclosure and oversight statute in which he did recuse himself. But he recused himself because in the OLC he had written a particular opinion and the law mandates recusal where a judge in an official capacity expressed an opinion on the merits of the case now before SCOTUS. Scalia of course has expressed no opinion on the instant case. In Murphy, he footnotes that a judge holidayed with the prosecutor in Murphy’s case right after sentencing Murphy. But this case marked the prosecutor’s deep involvement in the outcome of the case in a way that a nominal defendant in an official action case is not.

To come to the essence of the Club’s argument: large, influential newspapers are calling for Scalia’s recusal; no newspapers defend his non recusal; the newspapers reflect American public opinion and are unanimous an objective observer must conclude that Scalia’s impartiality has been questioned and therefore the legal test—“might reasonably be questioned”—is satisfied. So the argument is: Scalia must recuse himself because an important segment of the press, as proxy for the American public, wants him to.

As against this argument, Scalia counter notes a number of things: many press reports have the facts wrong; most of the press accounts engage the legal proposition that a federal officer, a nominal party, is typically not regarded as a personal party to an official action case; and those that engage it assume incorrectly that potential political damage to the official grounds recusal. Recusal does not flow from press accounts. It flows from the perspective of a reasonable observer apprised of all the facts and surrounding circumstances.

As against the Club’s inability to cite a single persuasive precedent, Scalia has unearthed some helpful examples that analogously negative the Club’s position.

Justice Byron White was close friends with Robert Kennedy when he was A.G. White had served in fact as a deputy A,G. under Kennedy. They went skiing together when White was on SCOTUS and two official action cases were pending naming Kennedy as nominal party. Plus another case was going to be argued two weeks after the skiing holiday which was deemed politically significant to the administration. And Kennedy argued the case, his only ever argument before SCOTUS. No recusal was ever suggested by anyone.

Justice Jackson, known for taking the recusal obligation seriously, socialized frequently with FDR and kept a close personal relationship with him. Even thought his administration was constantly before him. He spent a weekend with FDR while pending before him and to be argued the next month was a significantly important Commerce Clause case. Jackson wrote the opinion. Nothing came up about recusal.

If friendship grounds recusal in official action cases, then they must be abjured. But if they don’t, then social contacts which evidence that friendship without more are beside the point. The latter is the case and the well known practice of judges and executive officials and members of the legislature socializing and enjoying friendship continues.

So because Scalia’s partiality does not come into question, his recusal is out of the question. Plus, if Scalia were to recuse himself it would be because of press speculation of political consequence to Cheney if the underlying suit is successful, those consequences speculatively including damage to Cheney’s integrity. But losing official action law suits often entails political consequences which can often be translated by public commentary to officials’ reputational damage. So that speculative possibility grounding recusal amounts to a virtual veto over any justice friendly with, or who had social contacts with, a nominal defendant in an official action suit. That’s entirely problematic and would lay a foundation for that type of mischief making in other cases. (For example the L A Times editorialized that it was improper for Scalia to sit on a case argued by a Law School dean whose school Scalia had visited a few weeks before at the invitation of the dean’s predecessor.)

With irony, Scalia observes the Club’s lead counsel, a friend, invited Scalia in a “warm note” to speak to some of his classes at Stanford Law School with his transportations and expenses paid. Scalia as he says, saw nothing wrong in that friendly letter and invitation but would have thought otherwise if friendship simpliciter could ground recusal.

The issue, again devastating to the logic of the recusal request, is:

.…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…(p.20)

and his final words rather moving:

…As the newspaper editorials appended to the motion make clear, I have received a good deal of embarrassing criticism and adverse publicity in connection with the matters at issue here—even to the point of becoming (as the motion cruelly but accurately states) “fodder for late­ night comedians.” Motion to Recuse 6. If I could have done so in good conscience, I would have been pleased to demonstrate my integrity, and immediately silence the criticism, by getting off the case. Since I believe there is no basis for recusal, I cannot. The motion is…denied….(p 20-21)

So again, I find his reasons compelling. Others may disagree. And I am happy to argue with them about it.

Molly: Basman, I respect and like you, too, as you well know. But I'm afraid I must say that you did nothing above but give me a rote summary of Scalia's arguments. Scalia easily knocked down some of the Sierra Club's arguments, but that's because I'm assuming the Sierra Club did not hire very decent lawyers. Roi makes all the arguments I sort of made when I scribbled my notes, albeit I was far more inchoate. Now, I think there was plenty in this memo that showed a pathology of some kind. Probably pathological arrogance. And self-deceit. He truly believes his own hype. When the man wrote that every official in DC knows that you don't discuss pending cases, as if that could completely dismiss any of our concerns, as if there were no difference between knowing and doing, I almost fell out of my chair. Oh, and also, Washington is a bastion of purity. Furthermore, let's not leave aside the matter that Cheney's integrity was called into question by most thinking people in this country. And that the Cheney/Bush White House reeked of cronyism. This is true, and that alone should have been enough for any reasonable person to say, gee, I shouldn't take that plane trip, now should I. I might not want that taint. Scalia claims he could remain impartial. I doubt that sincerely. My own father-in-law, a lawyer and fan of Scalia's, was asked when he reported to jury duty, whether he had any biases. He answered that he had no idea, and that if he did, they wouldn't be biases. (He immediately got off jury duty.) So, OK, Scalia is super man. Nothing gets in the way of his judgment. He is blind justice itself. That there is his argument. Basically, his whole argument. T The trouble is, many expert HIGHLY RESPECTED legal scholars (never mind the press, for which Scalia has so little respect) have made many observations that Scalia is in fact highly partisan. Now, a man who wasn't pathologically arrogant and dishonest with himself would recognize that people have qualms about his very apparent biases, and he would go out of his way--not overboard, but out of his way--NOT TO GIVE THE IMPRESSION OF CONFLICT OF INTEREST. (Of course, Scalia purposely conflates overboard with out of the way. He conflates a lot. He's sneaky that way.) That is reason enough to have recused himself. I don't care how many other cases he sites. The man's job is not just to decide justice, but to allow the rest of the citizens in this country to feel as if we don't live in a banana republic. It's called propriety. Scalia is big on propriety. So big on it that he feels there's nothing inherently wrong with, evil about, a law that forbids gay sex. He is a self-confessed old-fashioned guy who believes in old-fashioned values. Here are some of my scribblings, if you're interested, as I was reading the memo. Roi covers these points better (forgive me Roi if any of my points are not in line with yours), but I figured if I took the time, I might as well include it in my post. If only for my own ego gratification. 1. He says this decision would have no bearing on Cheney's reputation. But this suit was very much, if not entirely, about Cheney's reputation. Yet Scalia, either because he thinks he's God or is lying, knows full well that the outcome of this decision would completely affect Cheney's reputation. 2. Then he opines about whether the energy execs being on the task force is necessarily a bad thing. That's not the point--it's a straw man. The point was whether their being on the task force hurt other interests--i.e. the Sierra Club folks, for starters. Here, he is either dishonest or stupid. Or, back to craziness, pathologically naive. 3. He writes in intricate detail about the cost of the plane ride. I recently, as I mentioned elsewhere on TNR, read excerpts of Peepys's diaries, as well as as a couple of biographies of the man. In his capacity as a naval secretary of sorts, he was twice called up to discuss "where the money all went." His technique was very similar to Scalia's. Bury them in details. It makes you look honest; as if you're revealing everything there is to reveal. So Don Nino buries us in a mound of unnecessary detail and obscures the fact that flying on air force two is not the same as flying commercial. That it's an honor, a thrill, a luxury, to be on that plane. Of course, as he goes on to say, this still doesn't matter. He's above those feelings. If this doesn't matter, then why mention it? Just like I asked above, why make mention of the dentist and physical/occupational therapist. If you're right on case law and precedent, Nino, there's no need to bring up this self-serving crap. But he's bringing it up to shade his argument. He also weirdly brings up the cost of attending a white house dinner for charity. Huh? That that would cost more? And that's relevant to the price of eggs because . . . . . That's either meant to mislead or he's crazy and can't make logical arguments. 3. Then he dismisses the entire press as irrelevant because a few idiots (not the NY Times or the Journal) got the facts wrong. So what? More unnecessary detail. More misleading, or more craziness not being able to make a logical argument. The Sierra Club is right: The press speaks for the people. It is an essential element of our democracy. Most major newspapers saw that Nino's flight was wrong. Which leads me back to my main point: The appearance of a conflict of interest. But Nino is above such matters. Besides which, the press makes "baseless accusations." I don't think questioning a possible conflict is baseless. But he thinks he gets away with this because he mentions a few bad apples. 4. Recusal would not, in this case, have harmed the court. Recusal would have made many intelligent Americans feel that we have a just system of law. That would have enhanced the court. 5. Consistency is some measure of sanity, I think. I'm not asking for machine-like consistency. Just enough to demonstrate that situations do not entirely decide your actions. He talks about the need for a tie-breaker. He pulled himself out of the pledge case. What? Was he not concerned? Was this case a trivial matter? Did he not care about the outcome (in which case one could assume he did care about the outcome of the Cheney case)? Or did he do a general kind of survey of his fellow justices so that he could know whether he'd be necessary or not? So he uses the pledge case to prove he's capable of recusing himself, even if that means contradicting himself. Either you're capable of listening to a case on its merits, or you're not. That's Nino's argument, not mine. 6. About the pledge case: What's he saying? That the world saw a bias, therefore he's out? Because according to Nino, he has no biases. So what does public opinion matter? He is incorruptible. That should be enough for us all. Claiming you're incorruptible could of course be seen as a sign of insanity. Or simply a sign of dishonesty--with others or yourself. Makes no difference. I'm sure there are plenty of flaws and inconsistencies in my arguments. And misunderstandings of the law. But that didn't stop Tony boy. On top of my other judgements, I judge him kind of lame. Where's the legal brilliance. I've never been to law school, and I'm sure that's apparent, but even a simpleton such as I could find flaws in his arguments. You, Basman, however, when you're arguing on behalf of yourself, nearly always convince or half-convince me. You devil, you.


Because Roi concurred with Molly’s long post of 03/27/2011 - 8:46pm, I’ll address it specifically on the assumption it takes into account Roi’s arguments. If there is an argument I’ve missed along the way, let me know and I’ll try my best to take it up. (It’s irrelevant I think, but I note that while you dismiss Sierra Club’s lawyers as not “very decent” Scalia’s memo has their lead counsel as Dean of Stanford Law School.)

Firstly I reject inferring from the style of Scalia’s writing or his piling on of details any emotional malady about him. Any such diagnosis should be based on something he said so preposterous, so detached from reality, like the scribblings of Loughner or whomever, that inferences of mental defect are reasonable to draw even by humble laypersons such as ourselves. “Nuts,” “crazy,” those are your terms of choice and they are grave and in the circumstances, I submit, wild. (Hence, my admonition as to some circumspection.) No, you will need palpable evidence from what he wrote to have a chance at probity for your characterizations on this score.

What you ought not do, and what I think you do do, is conflate your hated of the man plus your own ideological leanings with your assessment of what Scalia wrote in his memo.

I cannot see any reasonable legal or common sense connection between general perceptions of Cheney’s dishonesty, which I’ll stipulate existed only for the sake of this argument, and Scalia’s getting a plane ride from him. The issue was not personal as to Cheney. Reconsider the technicality of the issue before SCOTUS as set out by Scalia: how the Appellate court is to exercise its jurisdiction over the District Court in the latter court’s determining discovery limits. I mean how abstruse is that?

You elide the ongoing and crucial distinction between Cheney as a personal defendant and Cheney as a nominal defendant by virtue of his office in an official action law suit. As Scalia makes clear, friendship is not ground for recusal in such suits. So the question which you don’t attend to is: since Scalia would not have been disqualified by reason of his friendship with Cheney, what difference did his catching a plane ride, one way, when he had already bought return tickets, and hunting with Cheney in a large group of hunters under arrangements struck before the cert petition was filed, in the circumstances Scalia carefully describes, make?

What was super added by virtue of that trip? Scalia spends a lot of time in his memo describing the kind of socializing that goes on in Washington amongst judges, legislators and members of the executive including Presidents and Vice Presidents. He gives examples of the kind of non-eyebrow-raising close mingling in the past while cases were pending—Justice White and before him Justice Jackson. You don’t address what’s different in this case.

As well your concern that Scalia could not remain impartial is misconceived here for the above reason. If his friendship with Cheney is not enough to dislodge Scalia’s impartiality in official action suits, what is, again, super added by the hunting trip as described by Scalia? All it was was a demonstration of an incident of their friendship. His partiality was not going to be bought by that trip, obviously.

Your third paragraph is highly emotional. Scalia may be thought to be highly partisan. So what? His perceived partisanship is irrelevant. If your argument has any force, it would apply to a judge who by reputation is neutral just as it would to a judge whose reputation is partisan. He is or he isn’t partisan. If he is, then the hunting trip isn’t going to make him more partisan. And if he isn’t, the hunting trip isn’t going to make him more partisan. He is going to be the same judge regardless of his going on the trip.

So, again, the same law that does not disqualify him from judging based on friendship will not disqualify him based on the trip. If you think it through a bit, you would be more concerned with a judge so mingling with a party to an action that he was not friendly with than with one he is friendly with. In the latter case, ironically, given your argument, Scalia’s friendship with Cheney ameliorates the concern, puts it into an accommodating context, as two strangers so mingling does not.

You say Scalia “conflates a lot.” I need concrete examples of that supported by things he specifically says. Molly, as I have been trying to point out, the conflation rests with you.

As to your enumerated points:

1. Scalia does not say this case has no bearing on Cheney’s reputation. He says rather the issue before the court is not Cheney’s reputation but some technical issue about superior court supervision and the limits of discovery. You miss the difference between cases where reputation precisely forms the legal issue before the court—say fraud, or some such—and cases where damage to reputation is a political consequence.

Contrary to what you say, Scalia engages the potentiality of the bad political consequences to Cheney from a decision ultimately going against him. He says, correctly, they are not his business as a judge. As a judge his business concerns the legal issues before him, which he will decide unmindful of political consequence. So on this point, respectfully, you are wrong.

2. You are harping on, and putting way too much emphasis on, some irrelevant (what lawyers and judges call) obiter dicta—non essential judicial comment. He’s just saying, probably better he hadn’t, that oil execs might be good on the Task Force, but his comment is neither here nor there. And if that’s what you’re pinning mental defect or dishonesty on, it’s time to move on to the next debate. (Ironically here, given the issues, if the oil executives were functionally part of the Task Force, the Club by law will have discovery of them.)

3(1) I think it’s entirely salutary that he gave a comprehensive account of his trip. There is no appeal from his decision. He stands only to stand or fall for his decision in the public mind including his peers and other lawyers and judges who engage his reasons. If he was trying to make his position and his ruling persuasive, who’s to call him pisher? We all do that in our way.

At least he laid it all out there and we can all come to our own judgments. And what details did he bury anyone in? Harken back to the legal test: partiality being called into question from the perspective of a reasonable observer apprised of all the facts and surrounding circumstances. Given that test, I’d think the “court of public opinion,” the only court left to judge and that matters, if only reputationally, would want as many details of the trip as are relevant.

(Plus there is another, smaller point conformable to understandable human nature operating here: Scalia is in part defending his honour as a judge. For the suggestion in the motion is that he is incapable of being partial as regards his friend the Vice President. I don’t agree with Scalia’s textualism or his originalism but unlike you, I think he proceeds in good faith. Or else why is Ruth Bader Ginsburg such a good friend of a man who is either insane or deeply dishonest? Hmmm?)

3(2) Scalia's right to dismiss press accounts and what the press calls for. The press has agendas. Most of the press got details of the story wrong. Most of the press did not attend to the law that he rehearses so fully in his reasons—the distinction between private law suits and official action law suits and the relation between friendship to both sides of the distinction. Most of those that attended to the law misconceive the role of *political consequences* in the recusal analysis in official action suits.

There is no case of recusal based on the press standing as proxy for public opinion or more saliently for the reasonable observer apprised of all facts and circumstances called for by the legal test. On this point, recusal here vindicates political consequence as a relevant factor and changes the law by importing friendship into the analysis where it had no place before. Were this to happen the practical parade of “horribles” is easily imaginable.

4. Harming the court is not the issue. But my speculation is as good as yours. Recusal would have harmed the court because it would have elevated itself into a tactic on a new ground—friendship in official action cases—with a great potential for manipulative mischief and in defiance of the obvious socializing between judges and highly placed others.

5 +6. Is the “pledge case” the Public Citizen case? I assume it is. If it’s not I don’t know what you are referring to. If it is, on the assumption it is, what in God’s name are you talking about? And if it is, you make a hash of “consistency” by not being careful in your observations. That case invoked a specific ground for recusal:

…I concluded that my withdrawal from the case was required by 28 U. S. C. §455(b)(3), which mandates recusal where the judge “has served in governmental employment and in such capacity . . . expressed an opinion concerning the merits of the particu­lar case in controversy.” I have never expressed an opinion concerning the merits of the present case… (page 12, footnote 3).

Scalia had expressed the very opinion warranting recusal. In the instant case, as he notes, he had not. So there is, I think, assuming we are talking about the same case, nothing to your point about consistency.

So Molly, I still love you the way only a younger brother can love his older sister. Nothing in what I say is personal. And if you wish to respond, I’ll be happy to try and address what you further to say.

Yours truly,

The Devil

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