Re: Kaplan's Opinion [Was: Space-Shifting]

At 11:15 PM -0400 10/25/00, Bryan Taylor wrote:
>--- John Noble <jnoble[_at_]dgsys.com> wrote:

>Why does the word "sham" come to mind? This is not the scenario, but if
>it were I would expect the non-liberal side to have no objection to the
>judge remaining and I wouldn't credit "we hired your son so you should
>recuse yourself".
>

It was offered tongue in cheek. But as to the "non-liberal side" (there's a circumlocution) not objecting, it's worth noting that the government did not object to Rehnquist's participation. And you argue below that recusal should be based "purely on the law." The law doesn't require an objection; it requires the judge to act sua sponte, as Rehnquist did. And your reading of the law would require Rehnquist to recuse himself from ANY case in which ANY party is represented by his son in another proceeding that might be affected by the outcome of the Supreme Court case.

If Microsoft had hired Justice Breyer's son, would you argue that Breyer must recuse himself just like Rehnquist should, or that the Government has no objection, and that Breyer shouldn't credit "we hired your son so you should recuse yourself." Surely, you're not arguing that "purely on the law" only applies when the claimed bias is consistent, rather than in conflict, with the judge's perceived legal philosophy.

>> Do you really think -- do you think anyone really thinks -- that
>> Rehnquist would abandon his judicial philosophy to toss a bone
>> to junior.
>
>That sort of analysis is irrelevant.

Why is it irrelevant? 455(a) calls for disqualification "in any proceeding in which his impartiality might reasonably be questioned" -- which is pretty much the issue I posed.

You thought it was relevant to my hypothetical. You said that you thought the "non-liberal" side would have no objection if Rehnquist's son was representing a "liberal" client with a case before the Supreme Court. You must have said that because you agree that the non-liberal side is confident, and I suspect you are confident, that Rehnquist isn't going to abandon his conservative philosophy to benefit his son's liberal client. The distinction you draw between Junior's hypothetical liberal clients and his actual "non-liberal" client suggests to me that you are questioning his impartiality based, not on the identity of his son's client, but on his judicial philosophy. In fact, his view of antitrust is so entrenched, so well-known, and (more or less) consistent, that the only question is why MS was so stupid as to hire Junior's firm and risk his recusal.

>The decision should be based
>purely on the law. 28 US 455(b)(5)(ii,iii) are the relevant clauses.
>Part (iii) is especially troubling here because I can't square
>Rehnquist's decision with it.

Subsec (b)(5)(ii) clearly does not apply -- Junior is not a lawyer in the proceeding by anyone's account. Subsec (b)(5)(iii) is the issue, and the one that Rehnquist addressed. I'm not saying that his call on that question isn't debatable, but I think it is finally right. How does Junior benefit from a decision for MS in the Supreme Court? Most obviously, Junior's firm loses substantial fees if the Supreme Court decides for MS because Junior's case is like to evaporate. Summary judgment -- no discovery, no trial, no use for local counsel. In fact you could argue, but I'm sure you won't, that Junior's representation presents an apparent conflict because a decision against Microsoft would help put the grandkids through college.

But that's just the monetary effect. You will argue, sensibly, that a lawyer benefits when his client wins, even if it means a shorter case and lower fees. The problem with that, as Rehnquist discusses, is that it is unbounded. Any case the Supreme Court decides can turn a case for a relative's client, and it doesn't make any difference at all whether the relative's client is the party who wins in the Supreme Court. My example was CSU v. Xerox, cert pending. The decision in that case would likely have a direct and substantial effect on the outcome of Junior's MS antitrust litigation -- it might even be more direct and more substantial than US v. MS depending on the claims in the case. Another example (I hope I don't have the facts wrong, but we can call it a hypothetical if I do): I think Justice Stevens' daughter practices labor law. Any labor decision by the Supreme Court would likely benefit (or harm) every single one of her clients. Should Justice Stevens recuse himself from all labor cases because his daughter practices labor law? Or what about Ginzburg. Husband is a tax lawyer. Her vote against the IRS upholding a tax planning strategy gives him a new product to sell his clients. Would you disqualify? Maybe you would recuse Stevens (I think it's a tougher call than Rehnquist in US v MS), and not Ginzburg, but it makes the point that you have to draw lines somewhere, and I don't think the line necessarily has anything to do with the identity of the client.

>
>There are two changes that I would make to the way recusals are
>handled.
>
>First, I think it is wrong for a judge to decide to deny their own
>recusal if a party raises it. Rather the court above should decide it.

Like everything else, the judge with the case gets the first crack at it. The Court above gets it on appeal. You would find, I think, that judges recuse themselves far more often than they would be disqualified by the Court of Appeals because a) they bend over backwards when judging themselves, and b) it lightens their workload.

>If it is a Supreme Court case, then Congress should vote.

This would present some separation of powers problems. And that would be the least of the problems. Do you really want to see Henry Hyde and Trent Lott, Barney Frank and Ted Kennedy holding hearings and cross-examining a Supreme Court judge, while Jerry Falwell and Jill Ireland work the media, and Ralph Reed and Roger Craver generate grass-roots campaigns. And are you going to vet 100 Senators and 435 Representatives to make sure none of them have relatives within the third degreee who might benefit from the decision.

I have suggested the possibility that a Supreme Court justice's refusal to recuse himself might be "appealed" by a motion to disqualify addressed to the Court en banc. It is not a perfect solution, and it's less entertaining than the prospect of Barney Frank cross-examining Nino Scalia, but it has some advantages.

>
>Second, a replacement should be appointed so that you don't get ties.
>Perhaps each judge can pick their own standing back-up, so there is
>little incentive to go after recusal per your scenario above.

Standing back-ups for Supreme Court judges chosen by the judges themselves? This is going to require some tinkering with the Constitution.

John Noble Received on Sat Oct 28 2000 - 20:46:23 GMT