Ed Whelan at National Review On-Line has once again found low hanging fruit on the left end of the political spectrum, and he has grabbed it to feed readers hungry for an analytically correct argument.
The low hanging fruit this time is the claim that Justice Scalia must recuse from the marriage cases now before the Court because in public speeches he explained his vote in prior cases on related topics, and (unlike in his written opinions) he did so in a boorish way that reveals his personal prejudices against homosexuals.
Knowing there is no argument on recusal, some on the left have resorted to calling for impeachment:
Here also, the argument fails. In a colloquy that was part of a speech at Princeton Justice Scalia compared moral feelings about homosexuality with moral feelings about murder. This was inappropriate and revealed that, on this issue at least, Justice Scalia’s views are far from the mainstream (several of this Country’s oldest religious denominations now bless same sex unions, which are legally recognized as marriages in nine states). Justice Scalia’s speech was revealing about him but was hardly a high crime or misdemeanor.
Whelan responds here:
Of course Whelan is correct on the law. Whelan, however, refuses to recognize that the speech was very bad taste at the very least. The best remedy is neither recusal nor impeachment. It is for the remaining Justices to do what they have done in the past: make up their own minds, giving whatever respect they believe due to the views of this particular colleague on the Court.
I wish that Justice Scalia were more judicial and temperate during his public speaking gigs, especially on topics where emotions run strong. His style undermines public confidence in the judiciary. Still, I agree with you that there are no grounds for recusal or impeachment.
Posted by: John Steele | December 19, 2012 at 01:56 PM
Prejudice against certain groups of persons does not automatically require recusal. Other judges may have prejudices against smokers, gamblers, drinkers, atheists, fornicators, socialists, Republicans, Democrats, abortionists or any other group of people. That does not mean they cannot decide cases involving such persons. Usually they can.
Posted by: Richard W. Painter | December 19, 2012 at 02:42 PM
Richard, You say that Scalia revealed his personal prejudice against homosexuals. That meets his own standard for recusal. He said in Republican Party v. White:
"One meaning of 'impartiality' in the judicial context – and of course its root meaning – is the lack of bias for or against either party to the proceeding. Impartiality in this sense assures equal application of the law. That is, it guarantees a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party. This is the traditional sense in which the term is used.... It is also the sense in which it is used in the cases cited by respondents and amici for the proposition that an impartial judge is essential to due process [citing cases]."
Justice Stevens said in dissent:
"Even when 'impartiality' is defined in its narrowest sense to embrace only 'the lack of bias for or against either party to the proceeding,' the announce clause serves that interest. Expressions that stress a candidate’s unbroken record of affirming convictions for rape, for example, imply a bias in favor of a particular litigant (the prosecutor) and against a class of litigants (defendants in rape cases).
Scalia replied: "Some of the speech prohibited by the announce clause may well exhibit a bias against parties – including Justice Stevens’ example of an election speech stressing the candidate’s unbroken record of affirming convictions for rape...."
Since Scalia revealed his bias against homosexuals as a class, he is required by his own standard to recuse himself.
Posted by: Monroe Freedman | December 19, 2012 at 03:53 PM
Monroe, thanks for posting that. Fwiw, I support same sex marriage.
Did Scalia say something more than, essentially, "legislative condemnation of homosexuality is based upon moral grounds and if we ban moral grounds for legislation there is a lot of other legislation that would be impermissible'? In other words, how closely did he say that he has an actual bias against homosexuals? (For me, when we criticize a public figure, paraphrasing him/her doesn't count; we need to cite the actual words as they have been reported.)
I thought his view was compatible with the idea that, "if the legislature approves same sex marriage, I would have no problem upholding that legislation." If I'm wrong about that, I would be grateful to anyone who correct me.
Posted by: John Steele | December 19, 2012 at 04:22 PM
John, I relied on Richard's statement that "[Scalia] did so in a boorish way that reveals his personal prejudices against homosexuals."
If that's incorrect, and one can't fairly say that he revealed his personal prejudices against homosexuals, then my opinion would be different.
Posted by: Monroe Freedman | December 19, 2012 at 04:43 PM
He has made it clear that he sympathizes with those who believe homosexuality is immoral. That does not require him to recuse from these cases any more than a judge who believes gambling is immoral must recuse from a case involing a casino.
He is prejudiced with respect to homosexuality. Many people disagree with him on that. But that does not mean that he cannot decide this case.
Judge Walker also made up his mind aboud homosexuality, in a very different way, and there was no reason to require him to recuse from the Prop 8 case.
Posted by: Richard Painter | December 19, 2012 at 06:41 PM
Richard, Please clarify what you're saying.
If Scalia said only that he "sympathizes with those who believer homosexuality is immoral," that doesn't justify disqualification.
But if "He is prejudiced with respect to homosexuality," then, on his own standard (concurred in by all the justices through the Stevens opinion) he is required to recuse himself.
Sympathizing with a litigant is not the same as being prejudiced against a litigant, but you seem to equate the two.
Posted by: Monroe Freedman | December 19, 2012 at 07:03 PM
What I am saying is that a judge who thinks gamblers are immoral, very immoral, can in ordinary circumstances rule in a casino case. Same for a judge who thinks abortion is very immoral, even similar to murder; that judge can in ordinary circumstances rule in an abortion case (I know that you and I disagree about the one case in which Judge Noonan was asked and refused to recuse himself). Same for a judge who thinks that it is immoral to deny the divinity of Jesus Christ; that same judge can in ordinary circumstances participate in a case involving a person or denomination that does the same. A judge who believes strongly that adultery is a sin can still in most circumstances rule in a case in which adultery is an issue. And so on.
More than mere personal prejudice against certain belief systems or conduct is needed to require recusal. It is prejudice so severe, or specific to a particular case, that would make a reasonable person doubt the judge's ability to fairly decide the case. I don't see that here. He showed bad judgment in giving the speech but he can still decide the case.
Finally, I should add that I am not certain what Justice Scalia really thinks about homosexuality. His speech, nonetheless, creates a lasting impression that will not be helpful for the reputation of the Court when it decides this very important case.
Posted by: Richard Painter | December 19, 2012 at 08:29 PM
It’s difficult to discuss an issue when you contradict yourself and make misstatements, but it’s an important issue, so I’ll give it one more try.
1) You misstate my position on Judge Noonan. I agree with you with respect to all the cases in your first paragraph, and, specifically, I did not disagree with you regarding Judge Noonan’s sitting on an abortion case when the issue was presented simply in terms of his religious objections to abortion. See ULE 245 (2d ed., 2002) (“Judge Noonan can properly sit in abortion cases”); ULE 253 (3d ed., 2004) (“Judge Noonan can properly sit in abortion cases”). I changed my position for two reasons. First, Judge Noonan’s published statements referring to abortionists as “people who maim and kill” – i.e., not just a moral position but, in your words, “[m]ore than mere personal prejudice against certain belief systems or conduct.” Second, That statement demonstrates at least as great a bias against abortionists as a group as do the illustrations used by the Supreme Court in White.
2) You say that Scalia’s comment about homosexuals “creates a lasting impression that will not be helpful for the reputation of the Court when it decides this very important case.” The Court has made it clear that the reputation of the judiciary is a critical concern of recusal law. In Liljeberg, for example, the Court said that members of the public too often have “suspicions and doubts” about judges, and the reason 455(a) was enacted was to eliminate such suspicions and doubts “whenever possible.” On the basis of your belief that Scalia’s participation will harm the reputation of the Court (i.e., more so even than “suspicions and doubts,” you should support recusal.
Posted by: Monroe Freedman | December 20, 2012 at 08:57 AM
1) If someone believes that human life begins at conception, as the Catholic Church does, then abortion is by definition an act of killing. Reasonable persons can disagree with the premise, but, if the premise is accepted as true, the conclusion Judge Noonan stated follows. No reasonable interpretation of the recusal statute could require recusal simply because a judge, speaking in his personal capacity, said that. Requiring recusal would indeed raise serious constitutional questions because it would impose a religious test on the exercises of the powers of a public office. E.g. I as an Episcopalian could hear the case but a Catholic who agrees with his Church could not. That does not work.
2) Justice Scalia's public statements in numerous instances -- including his Tea Party caucus address earlier this year -- create a lasting impression that is not helpful for the reputation of the Court. That is not, however, the test for recusal. The answer is for judges and justices to learn to control their mouth, not to recuse from their job, which is to hear and decide cases.
I do not believe that Judge Noonan made these or similar public statements while abortion related cases were pending before him. He has good judgment and discretion. I hope other judges and justices can do the same.
Posted by: Richard Painter | December 20, 2012 at 05:10 PM