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CJ Rehnquist gets curt with Leahy and Lieberman...(15 posts)

CJ Rehnquist gets curt with Leahy and Lieberman...mdehner
Jan 28, 2004 4:09 PM
In response to the Cheney/Scalia inquiry, excerpted below:

"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 or his opponent's claims."

Full text of their letter:

In response, Rehnquist says, in part, "any suggestion by you or Senator Lieberman as to why a Justice should recuse himself in a pending case is ill-considered."

Full Rehnquist response here:

Separation of powers, indeed! Youch!
You don't need separation of powers. . .czardonic
Jan 28, 2004 4:13 PM
. . .when the people holding office and sitting on the bench are of such sterling integrity.
Jan 28, 2004 5:01 PM
You are not permitted to question the Reich. It is, to put it gently, ill-considered.
They should keep their mouths shut.MR_GRUMPY
Jan 28, 2004 6:56 PM
Don't they know that "accidents" sometimes happen.

"God save King george."
Excellent response form the CJ.53T
Jan 29, 2004 7:37 AM
It is truly none of their GD business. Did these two morons sleep through law school?
I am not a moron and did not sleep through law schooljtolleson
Jan 29, 2004 7:54 AM
and I can think of no reason that it is "none of their GD business."

There are a variety of places we can look for guidance (in statute, rule, common law, and the rules of judicial conduct) but the bottom line inquiry is a common sense application of the "appearance of impropriety" standard.

Recusal is almost always discretionary, especially for mere social/emotional ties to a litigant. But that doesn't mean there isn't a solid basis for making the request.

If by saying it is "none of their GD business" you are emphasizing only that they aren't parties ... well, duh. It is the Supreme Court. It grants certiorari on matters of widespread public importance where the rule of law they declare will (usually) effect wider classes of citizens. For two members of leadership in another branch of govt. reminds them of the delicacy of their position, I see nothing wrong with that.
I am not a moron, etc.53T
Jan 29, 2004 9:59 AM
I was, in fact, leaning heavily on the circumstance of neither of the Senators being party to the case.

I would object to the gentlemen being refered to as "leadership", however. There are many elections that would have to occur before that is true again.

I agree that there is certainly nothing "wrong" with these two jabones voicing their opinions, but I still see no legal or structural role or necessity for them to do so. political manipulation would go much further in explaining the Senator's motivation.
concur, in part, and dissent, in part . . .ms
Jan 29, 2004 7:56 AM
The two senators are correct in their analysis of the issue. And, given that recusal is an issue of federal law enacted by Congress, the issue of recusal (and, perhaps, whether the statute should be amended) is their business. But, the CJ is right about the timing and form of their objection -- the only communication with the Court on a pending matter should be through the means specified in the rules -- briefs and motions. I guess that the senators could move for amicus status and file a brief on the issue. But, otherwise, they have no right to try to lobby (or bully) the Court in a pending case. I also think that whether a Supreme Court justice should recuse himself is a matter that only he or she should decide. I think that the damage to the internal workings of the Court if a group of justices could force the recusal of another justice would be far greater than any benefit that a recusal could have. If a justice is consistently refusing the recuse himself or herself in cases in which he or she should, that may be grounds for impeachment. But, I don't think that we are anywhere near that point.

There is another moron that slept through law school -- Jusitce Scalia. He has had to recuse himself in the Pledge of Allegiance case because he gave a public speech where he criticized the Ninth Circuit's decision -- any moron knew that there was a very substantial chance that the case would be coming before the Court. And, sociailzing with the VP when this case was on the horizon is something that Scalia should have known he should not do. The days when it was OK for William Howard Taft to vet prosepective judicial appointsments for Presidents Harding and Coolidge and when William O. Douglas was playing cards and drinking with FDR on a regular basis are long gone.
How appropriate53T
Jan 29, 2004 10:06 AM
While the issue of recusal is a matter of federal law, as you say, you are also correct in stating that "whether a Supreme Court justice should recuse himself is a matter that only he or she should decide." These facts seem to be at odds. I would reconcile that incongruity by sugesting that any legislative requirements for recusal in the fedeal judiciary that the statute may contain are unconstitutional due to separation of powers.

Scalia does seem to be loosing it in his old age, however.
Strange, but I agree with you on separation of powers.OldEdScott
Jan 29, 2004 10:15 AM
But you're wrong that it's none of the senators'-- or my -- GD business how SCJs conduct themselves. Given the near-limitless and unaccountable power these nine people have, and their lifetime appointments, it is very much our business how they behave, and talking about it out loud is damn near the only recourse we have.
No recourse53T
Jan 29, 2004 10:54 AM
Talking about it will not really have any effect on anything. The system is set up that way intentionally, ergo: life time appointments, no pay cuts allowed, appointed by the President.

It's kind of like arguing that the President lied to "the American people" about WMD. It really doesn't matter what the "American people" heard. He wasn't asking for a plebiscite on the war. Talk is cheap, way cheap.

If you want to change the SC, consider your vote for President, but you already knew that, didn't you.
Well, good Germans won't talk, but Americans will.OldEdScott
Jan 29, 2004 11:08 AM
Don't invoke the Rule, this isn't an accusation of Nazism. It's a statement about the American system and American character. Talking about it might not have an effect, and talk may be cheap, but talk is important enough to have an Amendment of its own. And Americans are a mouthy bunch and will not, sheeplike, just let stuff their leaders do slide without making rude comments. if required.

They get especially rude when told it's none of their GD business, which seems to be the modus operandi in the Bush White House, and now on the Court.
Impeachment . . .ms
Jan 29, 2004 11:13 AM
I think that if a justice failed to recuse himself on a case in which he had a significant interest or a pattern of ruling in cases in which he had a less significant interest but, nevertheless, should have recused himself pursuant to a federal statute, there would be grounds for impeachment. But, I think that the Samuel Chase impeachment properly set a high bar for impeachment of justices and judges. And, I think that the impeachment of a Supreme Court justice potentially could be more divisive and damaging to the country than the impeachment of a President. As much as I may disagree with Justice Scalia's positions in cases and I feel strongly that he should recuse himself in the present case, I would be strongly opposed to impeachment. So, as a practical matter you are right, there is no recourse. But, in an extreme case, a justice could be impeached and removed from office.
holy crap nmgtx
Jan 29, 2004 2:31 PM
nothing wrongDougSloan
Jan 30, 2004 9:23 PM
Typically what happens if there is a possibility of an "appearance of impropriety" is that the judge or attorney for a party, but more often the judge, discloses the incident or relationship to the parties in the case. Then, the parties are asked whether they desire recusal. Most often, I have found, no one cares enough to ask. Sometimes, though, judges recuse out of an abundance of caution. Depends on the judge.

There was a trial judge in Missouri with whom I had been friend since high school, college, a law school room mate, came from the same law firm, and was in his wedding. I tried several cases in front of him. Everyone knew of the circumstances, as it was a small county, and most all of the other lawyers would have had some connection, too. No one ever suggested recusal. Fact was he bent over backwards not to favor me, and it typically hurt more than it helped, in my view.

I don't see the Chief Justice's remarks nearly as extreme as others do, nothing at all like "don't question us." I see it more as a matter of procedure and propriety, following proper channels, instead of a following a personal or apparently political channel. Also, it would have been more appropriate to write Scalia directly, not another Justice, first. You always raise the issue directly with the judge concerned, first, as a matter of procedure and propriety.

Nonetheless, from the limited information we have, it appears that Scalia might have been better advised to recuse. However, that's with very limited information available.

I think too many people have a tendency to hair trigger over react to anything done by a Conservative, the most guilty of which instantly respond with some version of the "Reich" comments.