Much has been made of the Scalia line quoted in the Los Angeles Times that, “I do not think my impartiality could reasonably be questioned.” As I've already stated, I disagree. What's more important, however, is just how this comment of Scalia's was inappropriate and damaging. I'll set out some reasons below. But first, some detours.
The full text of Chief Justice Rehnquist's Jan. 26, 2004 short letter to Sen. Patrick Leahy clears up an ambiguity caused by the press reports. Recall that the Chief Justice was quoted as saying that,
“Anyone at all is free to criticize the action of a justice—as to recusal or as to the merits—after the case has been decided. But I think that any suggestion by you or Senator Lieberman as to why a justice should recuse himself in a pending case is ill-considered.”
On its face, this is a really, really odd claim.
The optimal time to raise questions about a judge's appearance of lack of impartiality, much less the real thing, is before the court hears the case. Afterwards it's either moot or looks like sour grapes. More to the point, with the Supreme Court afterwards is too late — there's no authority to take one's complaint to. (Furthermore, in the case of a litigant making the complaint as opposed to an interested observer, failure to raise a conflicts issue before decision will in most cases constitute waiver if the litigant was on notice of the issue. And quite properly so.)
And indeed, Chief Justice Rehnquist knows this. It appears from the full text of his letter is that what he's objecting to is Senators making bias claims in a pending matter. Whether this is because they are not parties, or based on some idea of separation of powers, or the Chief's barely disguised contempt for Congress, is not clear. But the separation of powers idea, at least, would be a plausible position. There are some administrative law cases, for example, which suggest that Senators cannot get too involved in pending administrative adjudications without violating the rights of the parties.
In this context, the position of the Democrats trying to make hay on this issue is a little ambiguous, and it's good that by and large they are treading carefully. Today's development, at least as reported by AP, seems to be an example of this. Reps. Henry Waxman of California and John Conyers of Michigan wrote to the Chief Justice asking him to consider setting up a system for challenging a Justice's non-recusal decision. The problem right now, however, is that there isn't a “decision”—there's just a comment to the press.
The Congress's oversight duties extend to the Supreme Court, although how far is not clear. There must be some point at which a recusal rule would cut too deeply, so it would be much preferable if the Court were to make its own rule.
“We do not believe that one standard should apply to judges who are friends of the Clintons, and another standard should apply to judges who are friends of Mr. Cheney,” Waxman and Conyers told Rehnquist.
While not directly challenging Scalia's integrity, they said, “We do believe that public trust in the Supreme Court could erode if recusal decisions appear arbitrary.
That's a sensible line to take politically. As a practical matter, however, the mind boggles. Who is going to hear recusal appeals? Chief Judges of the Court of Appeals? Senior (semi-retired) judges from those courts? Not the other members of the Court. And the last thing we want is frivolous recusal petitions….
Now back to the point with which I started.
Have the actual plaintiffs have moved for a recusal under the existing self-administered rules? I've seen no report of it. And there's no mention of it on the docket. For sure, asking a Justice to recuse is very, very, very rare. They don't have to, they are unreviewable, it puts their backs up and probably doesn't win points with the colleagues either. Especially for advocates who are repeat players at the Supreme Court bar, or hope to be, it's understandable that they may be reluctant to go nuclear. The plaintiff in the pledge of allegiance case, a lawyer representing himself, had nothing to lose and had no such compunctions, and Scalia duly recused himself.
The lead advocate for the Respondents is Alan Morrison, of Public Citizen. While one of the most experienced members of the Supreme Court bar, his reputation suggests that he's not one likely to shy away from filing a recusal petition if he thinks it's warranted. (Why hasn't the press been asking him about it?) But even a Morrison might pause in the face of a statement by the Justice saying that his mind was made up on the matter.
The best resolution of this matter would be for the plaintiffs to ask for recusal, and Scalia to grant it. Unfortunately, his very unjudicial comment to the LA Times, prejudging the merits of a recusal petition, makes that outcome even less likely — and more necessary.