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ETHICS OF RECUSAL What Mayor Bill Beck of Fredericksburg, Va., remembers most about the outdoor Religious Freedom Day ceremony last Jan. 12 was the temperature. “It was cold as blue blazes.” But Beck also vividly remembers being surprised at Justice Antonin Scalia‘s blunt criticism of how the courts and society have handled church-state issues in recent years. “From what he said, it was clear that he thought anyone who did not want school children to say the Pledge of Allegiance with the words ‘under God’ in it deserved a spanking,” recalls Beck, who introduced Scalia at the event, which was sponsored by the local chapter of the Knights of Columbus, a Roman Catholic fraternal and benevolent society. Eight months later, Scalia’s little-noted remarks on that frigid day resulted in his surprising decision Oct. 14 to recuse himself from the Pledge of Allegiance case Elk Grove Unified School District v. Newdow, No. 02-1624, a potentially landmark church-state dispute. Scalia’s action dramatically improved Sacramento, Calif., atheist Michael Newdow‘s chances of prevailing in his controversial quest to banish the Pledge as currently written from public schools nationwide. Scalia bowed out in apparent response to an unorthodox Sept. 9 recusal request by Newdow that cited news accounts of Scalia’s Fredericksburg speech. The recusal may also open a new front in the growing debate over what judges should and should not say off the bench � a debate fueled in part by Scalia’s own majority opinion in the 2002 judicial speech ruling Republican Party of Minnesota v. White. Some think the Scalia recusal may also make him and other justices and lower court judges more circumspect about what they say publicly when not on the bench and could prompt lawyers to comb through their past remarks for signs of bias. “Scalia’s action is extraordinarily important,” says Hofstra University School of Law professor Monroe Freedman, who organized a conference last month on judicial ethics that focused in part on off-the-bench speech by judges. The recusal was a rare acknowledgment by a justice that his public comments left him unable to “view the case with an open mind,” Freedman says, adding that Scalia “tries to be principled” on matters of ethics. Freedman thinks advocates should be scouring other justices’ speeches for signs of bias. “It was probably the right thing for Justice Scalia to do,” adds University of Pennsylvania Law School professor Geoffrey Hazard Jr. “And perhaps one might say that, more often, justices ought to do this when they’ve been emphatic in their prior pronouncements off the bench.” In their frequent speeches and writings, justices often offer pointed commentary on simmering legal issues � from mandatory minimum sentences, which were criticized recently by Justices Anthony Kennedy and Stephen Breyer, to federal land management policies, mocked by Justice Sandra Day O’Connor in her 2002 memoir Lazy B. Scalia himself has publicly spoken out against what he viewed as judicial excesses on a broad range of subjects, and Justice Clarence Thomas once said it would violate his religious beliefs to lift his pen in favor of affirmative action. Yet advocates rarely, if ever, do what Newdow did in pointing out such statements in a formal recusal request. Within the community of lawyers who argue before the Court, Newdow’s brash move upset long-standing, but unspoken, rules of etiquette that frown on asking justices to recuse themselves. Like all federal judges, the justices are subject to a federal ethics law � 28 U.S.C. Section 455(a) � that requires recusal when a judge’s “impartiality might reasonably be questioned.” But they make their recusal decisions without judicial review � and usually don’t bother to explain those decisions to the public. Before Scalia acted, one veteran lawyer who requested anonymity said that Newdow’s recusal request was an ill-advised insult to Scalia and the Court that would not have been filed by a lawyer knowledgeable in the ways of the Court. Now, Newdow’s gambit is looking smart since it seems likely that Scalia would have stayed in the case if Newdow had not suggested recusal. “Justices might well overlook some situations in which recusal is warranted � because no one raised it,” says Northwestern University School of Law professor Steven Lubet. “On the other hand, you can’t really fault a judge for saying, ‘Why should I step aside if no one has asked me to?’ “ Supreme Court practitioner David Frederick of Kellogg, Huber, Hansen, Todd & Evans says formally requesting that a justice recuse is “a high-risk strategy, and anyone attempting it had better be right on target.” Northwestern’s Lubet thinks that Newdow found an instance in which requesting recusal was proper, and he told Newdow as much. Newdow, who has been a licensed lawyer in California for only 15 months, called Lubet for advice on the recusal request before it was filed, Lubet says. Lubet did not try to talk Newdow out of it. “I thought it was well-taken.” Lubet explains that general comments justices make on legal issues � like comments by Kennedy and Breyer on mandatory minimums � do not violate judicial ethics rules. “It’s qualitatively different from a comment about a specific case, which is what happened here.” New York University School of Law professor Stephen Gillers, another judicial ethics expert, agrees. “There’s nothing wrong with a judge criticizing legislative decisions as a policy matter.” But “Justice Scalia slipped” in his Fredericksburg comments, says Gillers. “He was before a friendly audience, and it was clearly unintentional.” Once his remarks were reported, Gillers believes Scalia would have recused even without Newdow’s request. “I think the Court is going to reverse the 9th Circuit, and he knows that, so it’s probably less painful for him to recuse than it might have been,” Gillers adds. The local Fredericksburg newspaper, The Free Lance-Star, covered Scalia’s speech, but made no mention of his remarks about the Pledge case. But the Associated Press did so in an article written by one of its Supreme Court correspondents, Gina Holland. According to her report, the Pledge case came up in Scalia’s prepared remarks as well as later in a more spontaneous rejoinder to a protester in the audience. In his first reference, Scalia suggested that past misguided rulings by the Supreme Court had lent “some plausible support” to the 9th Circuit’s decision finding the Pledge of Allegiance unconstitutional because of its inclusion of the words “under God.” The second mention of the Pledge case came when Scalia spotted a protester’s sign. “The sign back there which says, ‘Get religion out of government,’ can be imposed on the whole country,” Scalia said, according to the AP story. “I have no problem with that philosophy being adopted democratically. If the gentleman holding the sign would persuade all of you of that, then we could eliminate ‘under God’ from the Pledge of Allegiance. That could be democratically done.” Newdow cited the AP story and quoted from the federal ethics statute in urging Scalia to recuse. Newdow continued, “It is highly unlikely that the justice had ever read any of the briefs in the case, and � although his knowledge base is prodigious � it is doubtful that Justice Scalia has been fully apprised” of the case’s background. Newdow also noted that the Knights of Columbus has filed an amicus curiae brief in the Pledge case. Scalia himself seems to have fluctuated in his views on the propriety of off-the-bench remarks by judges. In his majority opinion in last year’s Minnesota case on rules regarding what candidates for judgeships can say during their election campaigns, Scalia articulated a rationale that might well have buttressed a decision to remain in the Pledge case. “A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason,” wrote Scalia. “For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law.” Indeed, Scalia added, “even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so,” since it would indicate that the judge had not thought about the law before joining the bench. Scalia also said in that opinion, “Judges often state their views on disputed legal issues outside the context of adjudication � in classes that they conduct, and in books and speeches. Like the ABA Codes of Judicial Conduct, the Minnesota Code not only permits but encourages this.” But at Scalia’s 1986 Senate confirmation hearings, he took a harder line � a standard he apparently forgot in Fredericksburg, but returned to in his recusal decision last week. The late Sen. Strom Thurmond (R-S.C.) asked Scalia a softball question about the meaning of Marbury v. Madison, the 1803 decision that empowered the Court to review acts of Congress. Even though it is a ruling unlikely to be called into question any time soon, this is what Scalia said: “I do not think I should answer questions regarding any specific Supreme Court opinion, even one as fundamental as Marbury v. Madison.” STEVENS: LATEST BOBBLE JUSTICE Following the successful unveiling of Bobble Chief earlier this year, the irreverent law review Green Bag last week took delivery of the next doll in the series: Justice John Paul Stevens. By the end of last week, says editor Ross Davies, the first Stevens doll was to be placed on Stevens’ desk at the Supreme Court � via a courier Davies won’t name. Davies got a good reception for his earlier rendering of Chief Justice William Rehnquist, who sources say laughed hard when presented with his quivering ceramic likeness. And he is hoping for the same positive reaction from Stevens. “I don’t know the man, but I am told that Justice Stevens has a sense of humor too,” says Davies, who also teaches at George Mason University School of Law. As before, the roughly 1,200 Stevens dolls manufactured are not for sale. But one each will be sent to those who were subscribers to the law review as of Oct. 17. After a similar cutoff deprived many fans of their own Rehnquist doll, Davies detected an uptick in subscriptions to the journal � presumably from those who did not want to miss the subsequent justice dolls. Next in seniority is Justice Sandra Day O’Connor, and her doll should be ready by next summer, Davies says. Hours of planning and design go into the dolls as Davis tries to blend irreverence, scholarship, information, and respect � all in one seven-inch statue molded and manufactured by Alexander Global Promotions of Seattle. Each detail has significance specific to Stevens and his career. The Stevens doll, of course, is wearing his trademark bow tie � but not just any bow tie. It is the red, white, and black-striped specimen that Stevens often wears for formal court photos, Davies says. The white-maned likeness of Stevens is remarkably accurate. Stevens is depicted standing on a replica of a Sony Betamax Model SL 7200, the ancient video recorder that was at issue in Stevens’ 1984 ruling in Sony Corp. v. Universal Studios Inc., which found that the sale of video recorders did not violate copyright law. Davies bought an actual Betamax recorder off eBay to be sure the base of the statue was accurate. The tape inside the Betamax also has meaning: on its label is the date “8-17-1996.” That is when Virginia police taped statements made by Daryl Atkins, the retarded man whose death sentence led to Stevens’ 2002 ruling in Atkins v. Virginia, invalidating capital punishment for the retarded. In Stevens’ left hand is Vol. 467 of the U.S. Reports, which is where Stevens’ 1984 ruling in Chevron U.S.A. v. Natural Resources Defense Council can be found. The words of the well-known two-step “ Chevron test” for deference to regulatory agencies are printed atop the book in Stevens’ hand. “You could cite the bobblehead for the two-step test,” says Davies, clearly hoping that some Supreme Court advocate will do just that. Finally, the most obvious symbol in the doll’s design is a golf club and ball. Stevens is an avid golfer, but that is not what Davies aimed to portray. Instead, the golf gear symbolizes another Stevens opinion, the 2001 case PGA Tour v. Martin. The club is a Ping iron, the brand endorsed by Casey Martin, the disabled golfer who successfully sued professional golf seeking accommodation under the Americans With Disabilities Act. “We didn’t want to show any disrespect to Justice Stevens or to anyone involved” in the depicted cases, says Davies, who has gotten positive responses from those who have seen the Stevens doll. “People are taking it as intended, as fulfilling our mission of being useful and entertaining.” Tony Mauro is Supreme Court correspondent for American Lawyer Media and Legal Times. He can be reached at [email protected].

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