Here's something to be grateful for: Feds drop money-laundering case against Miami lawyer Ben Kuehne.
Justice was done too slowly here. But at least it was done.
HuffPo(*) has the scoop, Whoops: Anti-ACORN Bill Ropes In Defense Contractors, Others Charged With Fraud:
The congressional legislation intended to defund ACORN, passed with broad bipartisan support, is written so broadly that it applies to “any organization” that has been charged with breaking federal or state election laws, lobbying disclosure laws, campaign finance laws or filing fraudulent paperwork with any federal or state agency. It also applies to any of the employees, contractors or other folks affiliated with a group charged with any of those things.
In other words, the bill could plausibly defund the entire military-industrial complex. Whoops.
Rep. Alan Grayson (D-Fla.) picked up on the legislative overreach and asked the Project on Government Oversight (POGO) to sift through its database to find which contractors might be caught in the ACORN net.
Here's the Project of Government Oversight (POGO) federal contractor misconduct database. And POGO has more; meanwhile Rep. Grayson is asking for people to crowdsource his list of companies caught by the rule. According to Huffpo,
Grayson then intends to file that list in the legislative history that goes along with the bill so that judges can reference it when determining whether a company should be denied federal funds.
All this because naming ACORN in the legislation creates a risk that the statute might be a bill of attainder.
This is an amazingly brilliant if impractical idea given the level of corruption in military and doubtless civilian procurement (sort of super-debarment for those versed in procurement law), but we all know it will never survive the legislative sausage factory.
(*)-Employs family member.
We've all heard about the jurors who go home at night and Google the witnesses or the lawyers — and I'm sure the cases we hear about are only the tip of the iceberg.
But the feisty South Florida Lawyers Blog has got a story that tops any of that: a party text messaging with a witness during a break in that witness's testimony.
Instant mistrial when discovered. (Note: the lawyers were at a sidebar with the judge when it happened, so they're not to blame for this one.)
Congratulations to David O. Marcus for this big win : Pain doctor trial: judge orders government to pay most of M.D.'s legal bills.
Calling the actions of prosecutors “profoundly disturbing,” a federal judge in Miami has ordered the U.S. government to pay sanctions topping $600,000 in the case of a South Florida physician charged with illegally prescribing painkillers.
U.S. District Judge Alan Gold is forcing the government to pay Dr. Ali Shaygan more than half the costs he incurred to defend himself at trial as punishment for secretly recording his defense team.
In a harshly-worded 50-page order, Gold said the “win-at-any-cost behavior” of federal prosecutors Sean Cronin and Andrea Hoffman raised “troubling issues about the integrity of those who wield enormous power over the people they prosecute.”
Kidding aside (I couldn't resist the headline, sorry David), this is a major verdict and an important victory, especially as it comes on the heels of the Stevens case. Two cases isn't a huge sample, but it at least raises the possibility that under the prior administration the Justice Department may have developed problems that go beyond partisanship and involve losing sight of their mission to do justice rather than win at all costs.
Scott Horton, Why Two Bush Appointees Are Refusing to Leave, describes the incredible story of U.S. Attorneys Mary Beth Buchanan of Pittsburgh and Alice Martin of Birmingham — both highly partisan and dubiously ethical — who although they serve at the pleasure of the President refuse to hew to custom by tendering resignations, and either think they can bluff Team Obama into not firing them or see some partisan value in being fired rather than going quietly.
It had better not work. There is a place for holdover US Attorneys — when they're really good and genuinely non-partisan. Patrick Fitzgerald, for example. But ladies, you're no Patrick Fitzgerald.
YouTube - Eliot Spitzer Resignation
Now, how about family values Senator Vitter - when is he going to resign?
Here are two well-written blog postings that argue Spitzer need not resign:
I'm not persuaded. I don't think Spitzer should be treated worse then the next John, which means he maybe shouldn't be prosecuted and certainly shouldn't go to jail. But that doesn't mean he belongs in the Governor's mansion.
If the facts as we currently know them are true, NY Gov. Eliot Spitzer must resign.
As a general rule, I think that office-holders who commit crimes while in office should not continue to hold that office. (I do take shockingly bold positions, don't I?) This case seems to fall into that general rule. I admit that I have exceptions to my rule. For example, I can imagine excusing some — but only some — crimes involving entrapment, or highly technical and basically harmless violations of complex rules in the context of a good-faith effort to comply, or reliance on reasonable advice of counsel. But this case — from what we know so far — isn't even close to one of those exceptions.
The problem is not infidelity. It's not even the overweening stupidity (“worse than a crime: a blunder”). Nor even the incredible assumption that so many politicians and CEOs seem to have that the rules that apply elsewhere don't apply to them — although that gets close. The problem is that this is criminal behavior. And we really can't define our minimum requirements for public life that low and still hope to get this country out of the ditch.
The charge of “structuring” cash withdrawals seems to me the sort of technical issue I would be inclined to forgive; the suggestions of a Mann Act claim are silly on these facts; but the basic fact remains that hiring prostitutes is a crime. Maybe — maybe — it should be legal. (I don't feel well enough informed as to how 'victimless' a crime this is to have strong views; the expensive market may differ from the street, further complicating matters.) But it's not legal. And I think we must expect basic legality from public officials (and if they don't like the rules, let them lead the charge for better ones). That this particular crime is rarely prosecuted, and even more rarely prosecuted by the feds doesn't change a thing. That Spitzer once trumpeted his office's prosecution of a prostitution ring just adds hypocrisy to the mix.
Even if it this case were shown to be highly selective prosecution of a Democratic Governor by a partisan Justice Department — and we don't at present have nearly enough facts to allow us to reach any conclusions on this question — my conclusion remains firm: if indeed the facts are as we currently know them, then Spitzer must go.
(And so too should Senator David Vitter. And no doubt many others.)
Following Vernon Valentine Palmer's evidence that judges were more likely to rule for parties that had contributed to their election, X-Judge H. Lee Sarokin endorses a mandatory recusal policy for elected judges: “Judges should recuse themselves in cases in which either a lawyer or litigant has contributed to their election.”
Sounds great, right? So if I'm a corporate lawyer (or union lawyer) and think Judge Y leans too far towards unions (or against, as the case may be), all I have to do is make a token contribution to that judge and voila! I've stacked the bench.
The disease is likely real, but this cure is worse than the disease.
I know we have at least one blogging ex-judge in the US. There's the judge who collects legal humor. And, of course, there's Judge Posner, something of a law unto himself, who give his views online (mostly with his law & economics professor hat on), but do we have any serving judges with a full-time blog who discuss matters at all close to their service on the bench?
England (allegedly) does. See the (pseudonymous) The Magistrate's Blog. [In fact, I've just realized as I was editing this post, there's more than one, as the View From The Bench plausibly claims to “Being the thoughts, rants, speculations and anecdotes of a magistrate on a northern bench.”]
An English magistrate is a judge of limited jurisdiction, mostly petty offenses punishable by up to six months in gaol. Interestingly, many magistrates are not trained lawyers, although they do have legal advisers. (See the Wikipedia entry for more comprehensive, and perhaps even accurate, information.)
Whoever “Bystander” is, real magistrate or not, The Magistrate's Blog is an erudite and interesting blog. Yet there are some obvious ethical issues raised by a judge commenting on things that touch on past cases; these concerns are perhaps lessened by the magistrate's historical role as something of a representative of community values, or (traditionally) at least of the values of the better and rather more upper-crust elements of the community.
The magistrate, if that s/he be, deals with these with this self-description and disclaimer:
Musings and Snippets from an English Magistrate This blog is anonymous, and Bystander's views are his and his alone. Where his views differ from the letter of the law, he will enforce the letter of the law because that is what he has sworn to do. If you think that you can identify a particular case from one of the posts you are wrong. Enough facts are changed to preserve the truth of the tale but to disguise its exact source.
And perhaps that is enough.
Even so, I don't think that a sitting US judge would dare do anything like this. We've seen a prosecutor get in trouble for blogging. And of course there was the defendant who blogged about his own case pseudonymously — and lost the case when opposing counsel figured out who he was.
There are also a host of juror-bloggers. There's nothing wrong with a (petit) juror blogging after the trial is over, but it's obviously a ground for major concern if it happens during the trial as it provides a conduit for juror to lawyer/party communications which (a) might give one side an unfair advantage if only one side is learning what arguments are working ; (b) facilitate jury tampering; (c) provides fertile grounds for appeals. (More on blogging jurors here and here and no doubt elsewhere.)
Don't get me wrong, as a reader, I'm a fan. And I'm prepared to agree that the world is better off with the Magistrate's Blog than without it — so long as it's being true to its promise to change enough facts “to preserve the truth of the tale but to disguise its exact source”. But that is very difficult to do consistently over a long period of time. How, I wonder, was it done in this post, for example? (In the comments, Bystander even states that counsel read a particular case to the court!) If indeed the blog is by an actual Magistrate, the danger of slipping, or even of discovery over time without any slipping, is all too real.
Would discovery be that bad? In principle there's no difference between a judge writing an academic article about law reform and a magistrate blogging about legal issues that come up in and around the court s/he serves on. Were I a judge, however, I don't think I'd blog, and I certainly wouldn't do it pseudonymously if only because people would be sure to see that — however unfairly — as a sign of a guilty conscience. More importantly, print usually has editors and always takes time, which gives one opportunities for reflection. Blogging is quick and usually unedited. Risky….
But meanwhile, I'm going to be reading what “Bystander” writes.
Simple Justice Blog, Appeals Court Buries the Body So No One Knows, tells a strange and disturbing tale of NY state justice.
It features multiple carelessness and incompetence, an unethical prosecutor, a judge unworthy of the robe, and general callousness.
In the end, justice of a sort was done, and a mistaken conviction set aside … in a way that covered many tracks.
Every law student should read this — reality isn't quite like the textbooks.
Four Senators have written a stong letter (.pdf, also available in plain text) to Solicitor General Paul Clement asking him to appoint a Special Prosecutor to investigate whether Gonzales has committed perjury or obstruction of justice.
This puts Clement — often mentioned as a straight-arrow choice if the GOP ever gets another Supreme Court nomination — in the hot seat.
(I hear Patrick Fitzgerald just finished a couple of big trials, so I imagine he's available.)
I'm not entirely clear why Clement who, as Solicitor General is, I thought, only #4 in the DoJ pecking order, is acting AG for matters for which Gonzales is recused. Is it because there is currently no confirmed #2 or #3, or has the pecking order changed?
Update: Transcript of the press conference announcing the letter, in which Senator Russ Feingold says, “Based on what we know and the evidence about what happened in terms of the gang of eight and what he said in that sworn testimony in the committee, I believe it's perjury.”
There's heavy breathing going on at the WSJ Law blog as they report that Brooklyn Law School Student Bares All. It seems that Ms. Adriana Dominguez, a 3L who has “worked in the domestic violence unit in the Brooklyn DA’s office and served as treasurer of her law school’s Legal Association of Activist Women” also, as the NY Daily News put it, “shed her briefs”.
The WSJ blogger asks if this additional extracurricular activity might cause difficulties with the NY character and fitness committee when Ms. Dominguez applies to join the bar.
Let the jokes about visible fitness of the candidate, and the lack of character of the bar begin.
Kidding aside — assuming the conduct in the video was legal, it's First Amendment protected speech, and I can't imagine how a bar committee would dare block someone on the basis of their legally protected speech. They better not dare, anyway.
A more interesting question is to what extent a stunt like this might impact one's legal career. I imagine some straitlaced firms might think twice about hiring this kind of amateur videographer. (Maybe Sullivan & Cromwell is not a good bet?) And I could see it being an issue that might get in the way of a judicial career — would a governor or President nominate someone knowing this would be an issue at the confirmation hearing?
Some people are going to say that this sort of dumb stunt shows poor judgment, and might raise legitimate questions in a client's mind. And I'm sure that there comes a — gradually receding? — point where it's all just too much. But if the romp in question is no more than the Daily News article makes it sound (“happily strips naked, gets spanked and holds gavels up to her bare breasts”) well, really, who in the end cares?
It's often forgotten how it came to be that uber prosecutor Patrick Fitzgerald got appointed Special Counsel for the Plame investigation. After a period of Attorney General John Ashcroft's dithering and meddling, it finally dawned on someone that Ashcroft was conflicted out from the Plame case given the likelihood that the White House was involved, so responsibility for deciding what should be done passed to his deputy, James B. Comey. In his capacity as Acting Attorney General, Mr. Comey selected Patrick Fitzgerald because Comey believed Fitzgerald was the best US Attorney in the nation, and thus the best person for the job. (Comey behaved with similar rectitude when he took a principled stand against unfettered domestic surveillance.) And in due course, naturally, Comey got punished for his honesty, being passed over for the top job at Justice, landing on his feet at a defense contractor.
So if you are the sort of person who will celebrate today's verdict in the Libby trial, not vindictively, but as welcome evidence that the system works (sometimes), then perhaps you might also raise one toast for James B. Comey, patriot.
It doesn't happen very often — hasn't happened in years — but I'm in total agreement with something Alan Dershowitz has written. See his letter to the editor at the New York Times A Lawyer's Free Speech, in which he argues that attempts to use bar discipline procedures against Charles D. Stimson are misguided.
Firing, on the other hand…
National whipping boy, Deputy Assistant Secretary of Defense for Detainee Affairs Cully Stimson, has an apologetic letter in today's Washington Post. If it was sincere, it's a handsome apology as far as it goes (it's limited to the attack on the ethics of the lawyers involved, and fails to address the not-very-veiled suggestion that their clients boycott them).
Unfortunately, there are three good reasons to question its sincerity.
An Apology to Detainees' AttorneysWednesday, January 17, 2007; A18
During a radio interview last week, I brought up the topic of pro bono work and habeas corpus representation of detainees in Guantanamo Bay, Cuba. Regrettably, my comments left the impression that I question the integrity of those engaged in the zealous defense of detainees in Guantanamo. I do not.
I believe firmly that a foundational principle of our legal system is that the system works best when both sides are represented by competent legal counsel. I support pro bono work, as I said in the interview. I was a criminal defense attorney in two of my three tours in the Navy Judge Advocate General's Corps. I zealously represented unpopular clients — people charged with crimes that did not make them, or their attorneys, popular in the military. I believe that our justice system requires vigorous representation.
I apologize for what I said and to those lawyers and law firms who are representing clients at Guantanamo. I hope that my record of public service makes clear that those comments do not reflect my core beliefs.
CULLY STIMSON
Deputy Assistant Secretary of Defense for Detainee Affairs
Defense Department
Washington
There are three reasons to doubt the sincerity of this letter.
First, there's the coordination: it wasn't just a slip of the tongue in a radio interview. The suggestions that institutional clients should either boycott firms which represent detainees or should pressure them to drop the cases was backed up by a Jan 12 column in the Wall Street Journal, which mentioned “A senior U.S. official I spoke to speculates that this information might cause something of scandal, since so much of the pro bono work being done … appears to be subsidized by legal fees from the Fortune 500.” Or, as one wag put it, nice law firm you got there, be a shame if anything happened to it.
Second, there's Stimson's own Defense Department's general attack on US lawyers trying to use the courts to ensure civil rights for detainees — they call it “lawfare” and discuss it as a form of aggressive action by the US's enemies. (Lawfare is sometimes defined as the strategy of using or misusing law as a substitute for traditional military means to achieve military objectives.) In other words, Stimson's comments were more or less in line with the administration's official views, views he might even have had a hand in forming.
Third, there's Stimson's facility at saying stuff that just isn't true. Does anyone actually believe that Guantanamo is “the most transparent and open location in the world” — when journalists can't interview most of the inmates, and the government has fought tooth and nail to even prevent a list of their names from being released?
I think the combination of these circumstances and the failure to address the boycott issue means that this letter doesn't close the issue. Mr. Stimson should resign. If he doesn't then Congress should hold some hearings.
From the right: Professor Charles Fried discusses legal representation in America. (Well worth reading.)
From the center and the left:George W. Bush President of the United States
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500Dear President Bush:
The undersigned organizations call for the censure of Mr. Charles “Cully” Stimson, Deputy Assistant Secretary of Defense for Detainee Affairs, for statements attacking the lawyers who are defending the Guantánamo detainees. Mr. Stimson's remarks are aimed at chilling the willingness of lawyers to represent those persons imprisoned at Guantánamo, and are contrary to bedrock principles of the right to counsel and the presumption of innocence.
The threats by Mr. Stimson are not subtle. They imply these pro bono lawyers are terrorists. They exhort corporations to pull business from the firms where these lawyers are employed. These remarks are slanderous, and violate the free association rights of these lawyers and their firms.
We are confident that the corporate world will understand that Mr. Stimson's remarks are contrary to fundamental American values and that lawyers who provide representation to Guantánamo detainees, are acting in the best tradition of their profession. The legal profession and the corporate community should speak with one voice and tell Mr. Stimson he has no right to interfere with the relationships these law firms have with their clients.
The Administration should heed the words of Federal Judge Green, who has handled the many habeas petitions, when she said: “I do want to say we are very grateful for those attorneys who have accepted pro bono appointments. That is a service to the country, a service to the parties. No matter what position you take on this, it is a grand service.”
The administration must not only disavow these remarks, but Mr. Stimson should be publicly admonished and relieved of his duties for making these allegations and threats.
American Association of Jurists
cc: Attorney General Alberto R. Gonzales
International Association of Democratic Lawyers
National Lawyers Guild
Society of American Law Teachers
Secretary of Defense Robert Gates
In any normal administration he would resign. But this is not a normal administration: it's deeply corrupt in both the ethical and the financial sense.
Charles Stimson, deputy assistant secretary of defense for detainee affairs, says there should be a boycott of law firms defending Gitmo detainees. Too bad one of those firms, Paul, Weiss, Rifkind, Wharton & Garrison is representating Scooter Libby in his trial that starts Monday.
Guess Scooter won't be honoring the boycott.
The widespread pushback against Stimson's little piece of thuggery has been amazing. One more way in which this administration is alienating even its allies in the ruling establishment.
I'm sorry, but this is just disgusting. Now that there's a real chance that the might lose in the courts, the White House is trying to put the economic screws on lawyers representing Guantanamo detainees.
This radio interview with Cully Stimson, a Deputy Assistant Secretary of Defense, heralds the start of an organized campaign by the White House to encourage major law firm clients to pressure those firms to drop their pro-bono representation of Guantanamo detainees.
The Washington Post had a forceful editorial about this today, which says almost everything that needs saying:
MOST AMERICANS understand that legal representation for the accused is one of the core principles of the American way. Not, it seems, Cully Stimson, deputy assistant secretary of defense for detainee affairs. In a repellent interview yesterday with Federal News Radio, Mr. Stimson brought up, unprompted, the number of major U.S. law firms that have helped represent detainees at Guantanamo Bay.
"Actually you know I think the news story that you're really going to start seeing in the next couple of weeks is this: As a result of a FOIA [Freedom of Information Act] request through a major news organization, somebody asked, 'Who are the lawyers around this country representing detainees down there,' and you know what, it's shocking," he said.
Mr. Stimson proceeded to reel off the names of these firms, adding, "I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out."
Asked who was paying the firms, Mr. Stimson hinted of dark doings. "It's not clear, is it?" he said. "Some will maintain that they are doing it out of the goodness of their heart, that they're doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I'd be curious to have them explain that."
It might be only laughable that Mr. Stimson, during the interview, called Guantanamo "certainly, probably, the most transparent and open location in the world."
But it's offensive -- shocking, to use his word -- that Mr. Stimson, a lawyer, would argue that law firms are doing anything other than upholding the highest ethical traditions of the bar by taking on the most unpopular of defendants. It's shocking that he would seemingly encourage the firms' corporate clients to pressure them to drop this work. And it's shocking -- though perhaps not surprising -- that this is the person the administration has chosen to oversee detainee policy at Guantanamo.
It's true that the list of law firms donating time to representing the victims of torture, humiliation (and a total lack of due process) at Guantanamo reads a bit like a who's who of the elite of the corporate bar. And they deserve credit for it.
I'd just add one thing: the first firm to cave on this issue is going to find it awfully hard to recruit elite law students, as they will have demonstrated a serious lack of moral fiber. If you won't stand up for your most desperate clients, what kind of firm are you?
Under the headline Decision of the Day: The Worst Sanction Ever?, Robert Loblaw reports on Willhite v. Collins, 06-1004 (8th Cir., Aug. 21, 2006), as follows:
Attorney David Van Sickle was a little too zealous an advocate for his clients in a property dispute. After losing several actions in state court, he filed the same suit in federal court. The district court was not amused, imposing monetary and other sanctions on Van Sicke, including a requirement that he take and -- gasp! -- pass a law school class on federal jurisdiction. The Eighth Circuit remands on other grounds, but encourages the district court to revisit this sanction because of the burden it would place on some unlucky law school to accept a practicing attorney as a student.Seems to me the real problem would be if no local school would accept him; attending a single class out of town would be enormously expensive and disruptive. But otherwise, I kinda like the idea.
Might even be good for students, too, as a sort of 'Don't Let This Happen to You' example.
The Ethics Center wants two law student research assistants for a project related to McDonald's Corp. and standards for tomato growers. The are about 4 weeks of full time work commencing right after exams -- and sooner, if possible. It involves a preliminary analysis of proposed agriculture worker standards with regard to their compliance with both legal and "ethical" norms. This preliminary report will set the stage for a proposal for a full investigation over the next year or two, if they decide to pursue it.
UM Ethics Programs will be delighted to receive letters of interest and resumes directed to Anita Cava at acava@miami.edu as soon as possible.
The position carries a stipend of up to $2,500, depending on experience and availability. (Which is more than the chicken feed you get for being a research assistant!)
Peter Jung tipped me off to ABC News: EXCLUSIVE: Supreme Ethics Problem?:
At the historic swearing-in of John Roberts as the 17th chief justice of the United States last September, every member of the Supreme Court, except Antonin Scalia, was in attendance. ABC News has learned that Scalia instead was on the tennis court at one of the country's top resorts, the Ritz-Carlton hotel in Bachelor Gulch, Colo., during a trip to a legal seminar sponsored by the Federalist Society....
"I was out of town with a commitment that I could not break, and that's what the public information office told you," he said.
It "doesn't matter what it was. It was a commitment that I couldn't break," Scalia continued when questioned further.
According to the event's invitation, obtained by ABC News, the Federalist Society promised members who attended the seminar an exclusive and "rare opportunity to spend time, both socially and intellectually" with Scalia.
Update: Then again, maybe it's not a duck?
A law firm's sexual harassment case: An inside story Holland & Knight's Tampa office was, it seems, a hostile environment for women. And no one in the partnership, it seems, had the guts to publicly stand up and tell off a powerful partner even as he boored around at parties.
While the boorishness and severity of the problem at H&K's Tampa office sounds extreme (see the link above), my own experience suggests that inter-partner timidity may be more routine.
In the summer after my second third [corrected] year in law school, I worked in a very nice boutique law firm, a highly intellectual place, one that you might even think was somewhat progressive. [It did, however, have some notable Republican partners, including one whom I hypothesized — from a distance, as I never worked with him, just saw him at social occasions — might be the dumbest partner in the firm. He later got a major national-security-related government appointment, which was somewhat troubling.]
That summer, I overheard one of the partners remark to a group of male partners that he was still in charge of hiring receptionists, and that he made no apologies for ensuring that they were always beautiful (women, of course, that went without saying) as they were an part of the firm's image to anyone who came in the door. That was not, I thought, a BFOQ, but no one in earshot (including me, who didn't want to admit to eavesdropping) said a thing.
On the other hand, the firm I actually ended up working at, Wilmer, Cutler & Pickering (as it then was), had a culture in which receptionists were picked for their competence, and even associates could call sexism. The English partner for whom I worked in their London office found it quaint that I objected to client meetings in his (then) men-only club, The Athenaeum, even though it was reasonably priced, close to the office, and very exclusive. But he took it in good grace, Americans being notoriously funny about those things.
Mark A. R. Kleiman posts an interesting real-life ethics problem.
And, he doesn't tell us what he did.
Talking Points Memo and the Daily DeLay are trying to count up which Republican Congresspersons will own up to voting for the 'DeLay Rule' that would let indicted members retain their leadership roles….a category that appears likely to include Rep. DeLay any day now.
Since people are presumed innocent until proven guilty, I don't actually have a terrible problem with the substance of this rule — just the hypocrisy of it, since it was put into place only a few years ago in a noisy fashion as a political point-scorer aimed at Democrats.
So I've done my part, writing to my Representative, one of the most far-right members of the House with a very safe carefully-drawn seat. I'm sure she voted for it, but will she admit it?
If you are a reader in the US, and you are represented by a Republican member of the House, you can email your representative and ask how he/she voted on the DeLay Rule. If you get an answer, or even a non-answer, let TPM know.
It would be amusing if a majority of the members of the Republican caucus claimed to have voted against, wouldn't it?
More likely, though, they'll own up. But that's fine: it's one more step to painting the GOP as the party of sleaze. Hey, it worked for the UK's Labour Party, running against Tories in 1997, in circumstances not unlike today's Dems running against the GOP.
But however fine a fellow he is, he has done something that is, in my mind, inexcusable. He commissioned and put his name on a series of despicable legal memos that justified torture and prisoner abuse and that tried to avoid America's obligations under international law. In ordinary times, this would in itself be disqualifying. But, alas, these are not ordinary times.It is time for those who think the Bush Administration has gone too far to stand up to the President, to make the legal case against his Administration's policies and appointments. For years conservatives railed against judicial activism. It is time for liberals to start railing against government officials— including judges— who show disrespect for basic Rule of Law values, who flout basic protections of American constitutional law and international human rights law, and who seek to concentate ever greater power in an unaccountable executive.
Even if (and especially if) Gonzales is confirmed, it is vitally important to make these points loudly and often. Liberals must stand for something other than the correctness of Roe v. Wade.
K Marx The Spot suggests that Benjamin L. Ginsberg, a partner at Patton Boggs, may have violated the ethics rules of the DC Bar in relation to his representation of the Swift Boat liars. I don't think so.
[UPDATE: On the other hand both John O'Neill and Al French look vulnerable.]
The claim rests on Mr. Ginsberg's statement to the New York Times:
Mr. Ginsberg said that he had yet to work out payment details with the group and that he might consider doing the work pro bono.
In this statement K Marx finds two possible ethics violations: one on fees, and on pro bono service. Let's start with the second, which I don't think is plausible. K Marx argues that the reference to pro bono work may be a violation of Rule 6.1 on pro bono service. I don't think so, for two reasons. First, it's obvious that lawyers may and do pro bono work for groups with money, be it ACLU or Americans for a Better Country. Second, lawyers may work for free even if it doesn't meet their obligations under rule 6.1. Third, lawyers often use 'pro bono' to mean 'free' and this is just a newspaper interview. So I think this charge has no traction.
A more plausible-seeming charge is that Mr. Ginsberg may have violated Rule 1.5(b), on fees, which requires written agreement on fees with new clients:
When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation.
K Marx notes some double-edged counter-arguments, however:
It is possible, that Ginsberg could claim that the Swift Boat veterans are simply a group of Republicans that he has represented before, but doing so would lend credence to the notion that the Section 527 group is not really independent of other groups. He could claim that late August is still within a “reasonable time” to make written fee arrangements. But, according to the group's filing with the Internal Revenue Service, it was spending and raising serious amounts of money in June 2004. Surely they had consulted with their elections law expert by then to determine whether they were within the bounds of elections law! And surely three months pushes the notion of “reasonable time” a bit much.
But all this misses the point. Not only is three months probably not nearly enough to trigger a bar investigation especially if the client is not complaining (unless there's a Bar Opinion I don't know about), but it's important to note that Rule 1.5 doesn't require a fee agreement at all. Instead it only requires that “the basis or rate of the fee shall be communicated to the client” — i.e. the hourly charges. If Mr. Ginsburg handed them a pamphlet on the firm, or sent a letter saying, “I usually charge $500 per hour but it's possible that I may discount it” that would, I think, suffice.
No, the ethics thing probably isn't going anywhere. But what I want to know is how this representation worked within Patton Boggs. Did it get cleared within the partnership? What did the conflicts checkout look like? Was this entered as a paying or free representation? If the latter, as a favor to whom exactly?
In this context it's entertaining to note this part of Patton Boggs's quote from the Insider's Guide to Law Firms:
Patton Boggs used to be known as the quintessential “Democratic” insider firm, but it has enhanced its Republican profile in the 1990s with the additions of partner Ben Ginsberg, former general counsel to the Republican National Committee and presently the national counsel of the George W. Bush for President Committee; former Congressman Greg Laughlin, Republican of Texas; and Darryl Nirenberg, former Chief of Staff to Senator Jesse Helms.
…
Patton Boggs is organized more like a loose collection of sole practitioners than a traditional partnership.
I wonder what the other partners think of all this…
Now go back and reconsider this exchange in front of the Supreme Court, two years later, on April 28th, 2004 in this light:when Justice Ruth Bader Ginsburg asked Deputy Solicitor General Paul Clement
in the Hamdi cases whether judicial review should be foreclosed even in
cases of alleged torture, Clement dodged the question. “Our executive,”
he insisted, doesn't engage in torture. “Judicial micromanagement” was
inappropriate in wartime; “you have to trust the executive.”
Meanwhile the unnamed leakers are out in force complaining that their hands are tied by 'uncertainty' about how much pain they can inflict, and as a result that torrent of intelligence we were previously enjoying is now just a little trickle. Given the very high quality of recent intelligence (something that the NYT's article on its Officially Sanctioned Leak just somehow neglects to mention), I am very very sceptical indeed about this planted story.
You know, it's getting to the point where I'm actually wondering why I subscribe to the New York Times…
I happen to think the bar exam is a little silly. I happen to think that the division of the Union into 54 or more jurisdictions that keep out lawyers from elsewhere is anti-competitive. I also understand the rules we have are formalities I better take seriously or I am in trouble, and make sure to renew my NY and DC bar memberships as soon as the notices come in — just to make sure I don't misplace them.
Looks like DC Circuit nominee Thomas B. Griffith didn't get that last part, leading the Washington Post to report that Judicial Nominee Practiced Law Without License in Utah.
Fundamentally, this is just careless. But it's the sort of carelessness in a lawyer, given our existing rules, that rises to pretty serious negligence. It suggests corner-cutting, or an attitude of being above the rules, or just general disorganization … any of which I think is sufficient reason to reject even an otherwise qualified nominee. Furthermore, practicing law without a license is usually a fairly serious offense in most states. In this case, though, there may be a dispute about the extent to which Mr. Griffith actually engaged in authorized practice or instead managed to cover himself with local counsel.
Unauthorized practice is a subject near and dear to my heart, as I practiced international law for three years in the London office of a US firm, without an English law degree and without being either a solicitor or barrister. Unlike the US, the UK allows that — the offense there is holding yourself out as something you are not. But even so, to the great amusement of my English colleagues, I refused to sign any letters that contained opinions on English law, even if I had done all the research and drafted them. My English supervisors signed them, laughing all the while at my American formalism and punctilio.
Of course, Republicans, who preached so much about the need for exacting regard for state formalies during the recount period in the last Presidential election, will undoubtedly be the first to take a similar approach, and to say that this nomination should not go forward.
(And I have a bridge to sell you.)
Balkinization today:
The torture memos, I firmly believe, show the corrupting influence of power, and the desire to advance one's political career by casting aside professional pride and telling one's superiors that they can do whatever they like, no matter how base or unjust it may be. In the Bush Administration, ambition and syncophancy have trimphed over professionalism, sound judgement and moral seriousness. The corruptions of power have brought us to a sorry spectacle in which intelligent lawyers, many with impeccable credentials, have argued vigorously for an Imperial Presidency that is above the law and for the right to abuse and torture fellow human beings. This failure of moral imagination and professional scruple makes the participants unfit for judicial office, and no one should hesitate in saying so. Put another way, if the torture memos have made these very bright and talented lawyers radioactive, it couldn't have happened to a nicer bunch of guys.
It's probably too late to do anything about Bybee, alas. There seems to be a pretty strong tradition that after-confirmation discoveries of anything that isn't prosecuted don't count. See, e.g., Rehnquist .
On balance, and even though I don't like how it works here, I regret that I think this political stare decisis may be a good rule—do we want every litigant, or disappointed litigant doing oppo research on the judge? Furthermore, I think it unlikely that non-criminal pre-confirmation misdeeds meet the high bar set by the Constitutional impeachment requirement of “High crimes and misdemeanors.” (Perjury during a confirmation hearing would count because that's criminal, but there's no reason to believe Bybee would lie about it had anyone asked.)
I think that during his confirmation hearings, Bybee legitimately claimed that the content of his legal advice were covered by privilege. But I think his personal views were fair game. Unfortunately he dodged the few questions about this stuff during his confirmation hearings.
Debates about the legality of torture often invoke intuitions about the morality of the practice. The argument is that there may be extreme circumstances in which torture is morally justified, and if so the law should reflect this. (A subsidiary and separate issue is whether a particular given circumstance, e.g. the War on Terror, rises to the level of sufficiently extreme circumstances.)
Many people, especially the type of people who believe in inalienable human rights, have the intuition that torture is always wrong. Other people are not so sure; their intuitions are more utilitarian (it was Bentham, after all, who said “The idea of rights is nonsense and the idea of natural rights is nonsense on stilts”). What if torturing (killing?) one person (or a few people? or a few dozen people?) could save thousands, or millions? Wouldn't that be morally justified?
The most common capsule version of this question bandied about is the ‘terrorist known to have an a-bomb in NY’ (TABNY) scenario: What if the police capture someone 'known' to have a ticking a-bomb secreted somewhere in a major city, and 'know' they have only 24 hours to get the location before it goes off.
I think these hypotheticals have almost no connection with reality: How can the police 'know' the suspect is in fact guilty, and 'know' about the deadline, with sufficient moral certainty to be willing to contemplate torture, and yet not know what they seek?
I think these hypotheticals also elide what we know about torture: that some people don't crack, and that others will say anything, yes, even false things, to make it stop. And how many false leads does the victim have to give before the 24 hours are up?
But never mind that. Let's take it on its own terms. And by its own terms, I mean from the framework of a utilitarian moral calculus, since I doubt that a short blog post is going to convert a utilitarian to a rights-based vision of morality (although there are arguments justifying rights-based morality in consequentialist or utilitarian terms).
Law preforms complex functions in modern society. Among them it gives notice of which actions risk consequences (deterrence) and is to at least a limited extent a moral statement of what the community values, tolerates, or abhors (education).
We also know that rules tend to be violated. Generally speaking, however, if something is permitted we are likely to see more of it. Indeed, as the Medium Lobster recently noted, in some visions of utilitarianism it would be morally proper to torture N people if it would save N+1, or even morally proper to torture infinite numbers of “them” to save one of “us”.
Rules against the torture of suspects/detainees/prisoners are directed at the people who have power over that person. If we as a nation craft a rule that says torture is permitted to serve the greater good, we instruct the police officer/CIA officer/soldier at the sharp end that they should in each case make a personal judgment as to whether the end justifies this means. It is the nature of man, and especially bureaucratic man, that in times of stress people frequently are going to choose to err in the direction of heading off the mass disaster rather than risk being held responsible for failing to prevent it. That means we're likely going to see a lot of torture, indeed “too much” even by a utilitarian calculation. Furthermore, once you open the door to torture, there's no logical reason to think it will only be applied to “them”. What if the suspected 'terrorist with the bomb' is one of “us”?
Utilitarian opponents of a flat no-torture rule nevertheless object that it fails to deal with the rare but possible TABNY case where torture would be justified, and that this failing should be corrected. Here, I think I'll follow the great Charles L. Black, Jr. lead. In an article I wrote on cryptography and the constitution a few years ago I summarized Black's view:
that an “absolute” right against being tortured might nonetheless find room for an exception in the case of “the man who knew where the [atom] bomb [was ticking, but] sat grinning and silent in a chair” far from the place he had planted it. Charles L. Black, Jr., Mr. Justice Black, The Supreme Court, and the Bill of Rights, Harper's, Feb. 1961, at 63, reprinted in The Occasions of Justice: Essays Mostly on Law 89, 99 (1963). Explaining this position in a Constitutional Law class I attended at Yale in 1984, Professor Black stated that he believed torture morally justified in this extreme and hypothetical case. Once the torturer extracted the information required, Black continued, he should at once resign to await trial, pardon, and/or a decoration, as the case might be.
I think Charles Black got it exactly right. I'm not sure that I think torture is ever morally justified or sensible, but I am prepared to accept that in the most extreme circumstances there might be an exception to that rule. But one thing I am certain about: if someone thinks that torture might be morally correct in a given situation, I want the potential torturer to understand that by acting on their view they are putting themselves personally at risk, and that their duty is to turn themselves in as soon as they've extracted what they sought (or failed).
If it turns out that the belief which motivated the torture was justified (and the a-bomb is defused), we may praise them. But if it turns out that the belief was mistaken, and especially if they have tortured an innocent, let them not turn to legal institutions for refuge.
Eric Muller has further evidence that the Solictor General's office's misleading suggestion to the Supreme Court that torture (and its ilk) could never happen in the hands of our kindly and sensitive executive was NOT an off-the-cuff error in the heat of oral argument, nor a statement born of excusable ignorance (left hand, meet right hand), but rather part of a considered strategy. Whether that's a considered strategy of deception, or a considered strategy of something else, remains to be seen.
When the rot reaches the SG's office, that's a pretty high water mark for rot. As Eric says, “Very, very troubling.”
If he said what is reported at Bush Aide on Court Nominees Faces Fire as Nominee Himself, Brett Kavanaugh as much as perjured himself yesterday in front of a Senate committee when he stated that the White House had no ideological considerations in choosing judicial nominees. That obviously isn't true of this administration, just as it hasn't been true of many in my adult life (the exception that comes to mind is Jerry Ford, who seemed to care more about party affiliation than ideology per se).
I look forward to the same forces who explained, with some justice, that a person who lied to a grand jury was a poor choice to be President, now coming forward and explaining that a person who tells transparent porky pies to the Senate is unfit to be a DC circuit judge. (He's sorta young too. Judicial temperment, especially for federal appellate judges, does seem to tend to be a function of a certain age and experience much more often than not.) But I'm not holding my breath. Well worth a fillibuster. And I don't care how nice he is, how smart he is, or that he went to the right law school.
It's a little short, but Federal Judge Pulls His Suit From Courts Run by State sure makes it sound like something seriously wrong happened here: a “federal judge in Louisiana has taken control of an accident case involving his car and issued an order transferring evidence about his medical condition to a sealed federal court file.”
Most of the time I think Maureen Down’s column varies between vacuous and an insult to our collective intelligence. But I have to admit that about twice a year she hits one out of the park. Sunday’s paper has one one of those power slams: Quid Pro Quack, about Justice Scalia's apologia pro anas:
“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,” the justice scoffs.That's for sure.
Justice Scalia says, “The people must have confidence in the integrity of the justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, in an atmosphere where the press will be eager to find foot-faults.” He observes that it would be nonsensical for him to recuse himself simply because the press has the effrontery to point out when someone has done something wrong.
We, the press, are supposed to be the handmaidens and the manservants of our rulers. If we fulfilled our duties properly, our reports would go something like this:
In an admirable spirit of uncommon objectivity, in the pursuit of truth, justice and the American way, Associate Justice Scalia made time to poke around in the marshes of Louisiana with the equally scrupulous Dick Cheney, and then, refreshed by a well-deserved plane trip at our expense, he continued to transmit his enlightenment to a grateful nation.
Scalia takes 21 pages to explain why he will not recuse himself in the Cheney case
Some of the arguments are pretty good; others hover round the laugh test. Can anyone really believe that,
Nothing this Court says on those subjects will have any bearing upon the reputation and integrity of Richard Cheney. Moreover, even if this Court affirms the decision below and allows discovery to proceed in the District Court, the issue that would ultimately present itself still would have no bearing upon the reputation and integrity of Richard Cheney.
Can anyone believe that? I sure don't.
I'd post more, but I have a deadline. (Thanks, Dan, for the tip.)
The Mirror of Justice continues to be an interesting blog. Take for example, Mark Sargent, The Church's Lawyers, discussing the moral and ethical duties of the principals and the lawyers defending the Catholic church against what proved to be a plethora of justified charges of priestly abuse.
Further to Sierra Club Moves for Scalia Recual, here is the full text of the Sierra Club's Motion to Recuse Justice Scalia (also available in pdf ). Note exhibit 2, Scalia's letter to the Los Angeles Times, and exhibit 3, which includes the very funny editorial cartoons.
There's no way Justice Scalia can duck the issue now that Sierra Club has formally moved for recusal in the Cheney case.
The Sierra Club today formally requested the recusal of Supreme Court Justice Antonin Scalia from its case against Vice President Cheney and the secret Energy Task Force. Citing the intense public attention drawn to the January duck hunting trip taken by Cheney and Scalia, the Sierra Club reluctantly concluded that recusal is necessary to “redress an appearance of impropriety and to restore public confidence in the integrity of our nation's highest court.”
“Unfortunately, the Cheney-Scalia vacation mirrors the secrecy with which the Bush Administration often conducts business,” said David Bookbinder, Sierra Club's Washington Legal Director. “The public is continually shut out.”
The recusal motion filed today cites the dozens of editorials and editorial cartoons calling for Justice Scalia's withdrawal from the case as evidence that his impartiality is being reasonably questioned—the federal test for recusal. From the editorials and cartoons in papers across the country, to Jay Leno's monologue on the Tonight show, opinion leaders are questioning this trip and how it reflects on the Supreme Court.
“The public debate clearly echoes the common sense conclusion that the duck-hunting vacation taken by Cheney and Scalia creates the appearance of impropriety,” said Bookbinder.
The tactic of using the public commentary as evidence is sort of interesting, and demonstrates the wisdom—and also the possible vice—of the standard being one of 'reasonable appearance'.
On balance, I think it's a good standard, as one doesn't wish to put litigants into the postion of having to claim actual bias. No one would, and they'd never win. And this case is one where I think that the reasonable appearance of bias is quite clear. But I could imagine many cases in which the papers had a field day, but the accusation was not reasonable.
Bottom line: I don't sign on to the 'lots of smoke equals fire' view. A public outrcry, or even lots of jokes, is not sufficient to create a need for a recusal. And I don't understand the Sierra Club (based on the press release quoted above) to be arguing that the issue is that simple either. Rather, I take it that the evidence of public beliefs is presented at least in part to counter Scalia's public dismisal of the reasonableness of the concern in this case.
Just to repeat in case you missed it: the case involves the legality of secret meetings between Chaney and oil company execs. Some have alleged/speculated that in addition to discussing how to gut environmental rules, some pariticpants disucssed who would get access to Iraq's oil…and this in the early days of the current administration.
Justice Scalia's long and private trip—a multi-day secret meeting, albeit a social even not a business meeting—suggests not only a close relation with the litigant, but also a tin ear to the issues of openness.
Update: Here's what the SCOTUS Blog has to say on the subject:
We understand that this request was made in the form of a motion to the full court. In our experience, neither the filing of a “motion” nor submitting it to the full court was appropriate. Instead, recusals in the Supreme Court are properly handled by a “suggestion” of recusal submitted to the particular Justice, whose decision on whether to participate is not reviewed by the full court. That was the procedure successfully used in the Newdow pledge case. But form doesn't matter, given that (as the AP article explains) Justice Scalia has already made clear that he isn't going to recuse himself.
If it looks like a duck, and quacks like a duck…
Scalia Defends Hunting Trip With Cheney: Supreme Court Justice Antonin Scalia strongly indicated he will ignore calls to recuse himself from a court case involving his friend and hunting partner, Vice President Dick Cheney.
Scalia told a gathering at Amherst College on Tuesday night there was nothing improper about his accompanying Cheney to Louisiana last month to hunt ducks. The trip came three weeks after the Supreme Court agreed to hear the Bush administration's appeal in a case involving private meetings of Cheney's energy task force.
“It did not involve a lawsuit against Dick Cheney as a private individual,” Scalia said in response to a question from the audience of about 600 people. “This was a government issue. It's acceptable practice to socialize with executive branch officials when there are not personal claims against them. That's all I'm going to say for now. Quack, quack.”
…yup, it's a duck.
The Washington Post asks Sierra Club and Judicial Watch, the ligitants in Cheney v. United States District Court for the District of Columbia, if they will file a recusal petion and gets interesting answers.
Scalia Joined Cheney on Flight: Some legal scholars have suggested that Scalia should recuse himself from the Cheney case because of the trip. But one of the two organizations opposing Cheney in the case, Judicial Watch, disagreed. “We will not be asking for Justice Scalia's recusal,” said Tom Fitton, Judicial Watch president. “We do not think there is a conflict of interest or an appearance of a conflict.”
The other litigant suing Cheney, the Sierra Club, said it had not decided whether to seek Scalia's recusal. Sierra Club lawyer David Bookbinder said the presence of Scalia on the plane makes it appear he was accepting “valuable favors” from Cheney. “We understand why everybody in America is wondering why the appearance of impropriety has not been reached,” Bookbinder said.
The LA Times gets the scoop:
This is totally different. It's a personal not an official thing.
Traditionally the legal definition of chutzpah was 'killing your parents and throwing yourself on the mercy of the court because you are an orphan'. Maybe it's time to redefine it as 'going on a private hunting trip partly paid for by the Vice President's office, then sitting to hear a challenge to the legality of secret meetings held by the Vice President.'
I am certain that history will be brutal to these people, but that's rather cold comfort.
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.
AP reports that Chief Justice Rehnquist gave short shrift to the Leahy-Lieberman request for information about the Supreme Court's “canons, procedures and rules” on whether justices should recuse themselves from cases in which “their impartiality might reasonably be questioned.” The Chief Justice's letter is not at the Court's web site, indeed the most recent press release is dated Oct. 2, 2003.
According to AP, Rehnquist said any suggestion that Scalia should recuse himself “is ill considered.” [One reason I want to read the text is that this quote is hard to square with the suggestion later in the article that Rehnquist also took no position on the merits.]
Rehnquist … said that while justices often consult with colleagues when they are considering recusing themselves from a case, there is no formal procedure.“It has long been settled that each justice must decide such a question for himself,” he wrote in a letter sent to Lieberman, Leahy and each of the other court justices.
Rehnquist did not give an opinion about whether Scalia should step down from hearing the case, but made clear that it was up to Scalia — and no one else — to make that decision. After the case is over “anyone at all is free to criticize the action of a justice,” Rehnquist wrote.
Leahy said Monday that Rehnquist's letter confirms that the Supreme Court, unlike federal appeals courts and district courts, has no recusal procedure or oversight system. He also defended the timing of the letter.
“Because Supreme Court decisions cannot be reviewed, waiting until after a case is decided needlessly risks an irreversible, tainted result and a loss of public confidence in our nation's highest court,” Leahy said.
Allow me to commit lèse majesté here: On these facts, and in the fullness of the context, Scalia's impartiality is very much in doubt. In fact, I personally have very little faith in it. Recusal is called for. A duck hunting trip is nothing like a state dinner. As the Senators said, “when a sitting judge, poised to hear a case involving a particular litigant, goes on a vacation with that litigant, reasonable people will question whether that judge can be a fair and impartial adjudicator of that man's case.”
Remember: the next President will almost certainly appoint at least one, maybe up to three, Justices…an issue oddly absent from the campaign so far.