quasi in rem

Thursday, March 18, 2004

Scalia: Refuse to Recuse

Justice Scalia has smartly refused to recuse himself in this present term, for vaious reasons. Here are the highlights:

"The only possibility is that it would suggest I am a friend of his. But while friendship is a ground for recusal of a Justice where the personal fortune or the personal freedom of the friend is at issue, it has traditionally not been a ground for recusal where official action is at issue, no matter how important the official action was to the ambitions or the reputation of the Government officer."

That is, this action will not break the legs nor the bank of Cheney, no matter what the outcome. why is that? Because the suit is against the office of the Vice President, not Cheney in his own stead. Scalia explains:

"That an officer is named has traditionally made no difference to the proposition that friend-ship is not considered to affect impartiality in official-action suits. Regardless of whom they name, such suits, when the officer is the plaintiff, seek relief not for him personally but for the Government; and, when the officer is the defendant, seek relief not against him personally, but against the Government. That is why federal law provides for automatic substitution of the new officer when the originally named officer has been replaced. See Fed-eral Rule of Civil Procedure 25(d)(1); Federal Rule of Appellate Procedure 43(c)(2); this Court’s Rule 35.3."

And:

"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 reputa-tion and integrity of Richard Cheney."

And finally, Scalia mayhaps says too much:

"To be sure, there could be political consequences from disclosure of the fact (if it be so) that the Vice President favored business interests, and especially a sector of business with which he was formerly connected. But political consequences are not my concern, and the possibility of them does not convert an official suit into a private one. That possibility exists to a greater or lesser degree in virtually all suits involving agency action."

Which immediately brings to mind Bush v. Gore. Scalia has already said that he and Cheney have been friends since the mid 1970's. So clearly he was friends with him 200 when he ruled in a case that gave him the Vice Presidency. I think that at this point he is addressing those who impugned his integrity in that case.

He continues:

"To expect judges to take account of political consequences—and to assess the high or low degree of them—is to ask judges to do precisely what they should not do. It seems to me quite wrong (and quite impossible) to make recusal depend upon what degree of political damage a particular case can be expected to inflict."

In other words, if I didn't recuse myself in Bush v. Gore, then there is no way I am recusing myself here.

And then this is the best part:

"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."

As Scalia poitns out, recusal is a serious business, not to be taken lightly and by responding in this manner he has has shown that fact in spades.

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