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Fritz Feds

Tuesday, March 30, 2004


Rotunda on Scalia & Recusal

Ronald Rotunda, the con law professor that edited the casebook I used in my Con Law class last year, has this article on NRO about whether Scalia should recuse himself in the Cheney energy cases.

Here's Rotunda's conclusion:

There is a good reason why courts, both state and federal, interpret the "appearance of impartiality" language objectively and narrowly. Judges do not divorce themselves from the world when they don their robes. They still are allowed to have friends, go on hunting trips, and live a life. Years ago, when I was clerking for a federal judge, he asked me, after the oral argument, what I thought of the two lawyers' performances. Before I answered he said, "Those are two of the finest lawyers you'll ever meet. One was the best man at my wedding and the other is one of my very best friends." The judge did not think of disqualifying himself.

Nor did Chief Justice Harlan Fiske Stone disqualify himself from cases involving President Herbert Hoover, although he was a buddy and a member of Hoover's informal "medicine ball" cabinet. (They would throw medicine balls at each other before breakfast.) Nor did Justice Jackson, who was a personal friend of FDR, and took vacations with him. Nor did Justice Douglas, who was a poker buddy of FDR. Nor did Chief Justice Vinson, who was a poker buddy of Truman. Come to think of it, Justice Ruth Bader Ginsburg has given her name and presence to a lecture series cosponsored by the NOW Legal Defense and Education Fund, an organization that often argues women's-rights issues before Justice Ginsburg. Should she disqualify herself from issues involving women's rights?

I am a member of a legal ethics list server. One of the other members recently argued: "Censure by Congress, even articles of impeachment, should at least be considered" against Justice Scalia. Funny that one does not hear similar calls to impeach Justice Ginsburg because of her actions. Maybe that's because the calls for Scalia's recusal — and impeachment — have very little to do with justice and everything to do with politics.


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