Just a little chiasmus that came to me upon reading this editorial in the N.Y. Times. I largely agree with the points about gift giving to judges. The first judge I worked for criticized these boondoggles as unwise. That always struck me as sensible for judges on any court.
But note how the op-ed seamlessly elides the issue of recusal based on gift giving with all recusal issues. It makes this move almost exactly as it trains its sights on the U.S. Supreme Court, observing that "[t]here is a growing consensus -- outside the court -- that the justices should change how they handle recusals: requiring a justice to explain any decision to recuse or not, and having a group of justices review each recusal decision."
Setting aside the issue whether such a "consensus" exists (I think Professor Steven Lubet has made this argument recently; I'm unaware that it has generated anything approaching "consensus," even a "growing" one), this seems to me an idea fraught with danger. There are all kinds of reasons that claimants move to recuse judges from hearing cases. Some are financial. Some are personal. Some are political. Some are ideological (and, sometimes, when ideological, they may be supported by religious convictions, Catholic and otherwise). Should (to pick just one example at random) the Defense of Marriage Act ever make it to the Court on constitutional grounds, it would very much surprise me not to see a motion for Justice Scalia to recuse himself from the case -- based on his public comments, the claimant would likely argue that Justice Scalia's impartiality could reasonably be questioned.
Suppose that Justice Scalia decides that he will not recuse himself from the case. Or suppose that he decides that he will. Per the editorial's suggestion, he provides a list of reasons. And now the question of his recusal is reviewed by his colleagues. Perhaps a 3-justice panel (whom shall we choose)? Or perhaps the full complement of 8 justices? If the latter, what happens if we get a 4-4 tie? Does a tie go to Justice Scalia? More problematic -- what happens if the 4-4 tie mirrors exactly the way in which the justices vote on the substantive issue of DOMA's constitutionality? It would seem that by opting for this procedure, the justices might be tempted to judge the merits sub silentio and a little prematurely; at the very least, the appearance of impartiality as to the entire Court might suffer more than a little.
Another thought: would we permit motions to recuse certain justices from judging the propriety of a decision not to recuse -- recusing judges from judging recusals? Could DOMA supporters move to recuse a justice who had said negative things about DOMA in the press from considering Justice Scalia's refusal to recuse himself? If we did permit those types of motions, could we also have further proceedings where a panel of judges considered a justice's decision not to recuse herself from considering the appeal of a justice who didn't recuse himself from the merits? I'd guess most people might reject that sort of review as excessive. But having proceeded down this path, what now makes this collateral review out of bounds -- one step too far?
I understand that it would be wonderful if justices recused themselves based on our own individual sense of when their impartiality could reasonably be questioned. And I also recognize that recusal standards are frustratingly vague, and that the current process gives off the whiff of unaccountability. But thoroughly politicizing the recusal process by demanding that other justices pronounce judgment on their colleagues' recusal decisions seems to me a bad idea. It is a reform that, though surely offered with good intentions, is fraught with the possibility of gamesmanship and politicized tit-for-tat strategizing. If adopted, I think it is likely to damage the judiciary, and to exacerbate problems that it already confronts.
Thursday, November 25, 2010
Here (thanks to First Things) is Pres. Lincoln:
The year that is drawing toward its close has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added which are of so extraordinary a nature that they can not fail to penetrate and soften even the heart which is habitually insensible to the ever-watchful providence of Almighty God.
In the midst of a civil war of unequaled magnitude and severity, which has sometimes seemed to foreign states to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere, except in the theater of military conflict, while that theater has been greatly contracted by the advancing armies and navies of the Union. Needful diversions of wealth and of strength from the fields of peaceful industry to the national defense have not arrested the plow, the shuttle, or the ship; the ax has enlarged the borders of our settlements, and the mines, as well of iron and coal as of the precious metals, have yielded even more abundantly than heretofore. Population has steadily increased notwithstanding the waste that has been made in the camp, the siege, and the battlefield, and the country, rejoicing in the consciousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom.
No human counsel hath devised nor hath any mortal hand worked out these great things. They are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy.
It has seemed to me fit and proper that they should be solemnly, reverently, and gratefully acknowledged, as with one heart and one voice, by the whole American people. I do therefore invite my fellow-citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next as a day of thanksgiving and praise to our beneficent Father who dwelleth in the heavens. . .
Wednesday, November 24, 2010
For those who are interested in criminal law, the Ohio State Journal of Criminal Law is a relatively new peer reviewed periodical that publishes shorter and less heavily footnoted interventions than one generally finds in other legal journals. In the latest issue, I've got a brief reaction piece to Professor Anders Walker's interesting article a couple of issues back. Walker discusses the origins of the criminal law casebook as it largely exists today and offers some prescriptions for change to the course, among which are an increasing, if not exclusive, focus on case law and a concerted movement away from more theoretical discussion about the purposes, functions, and justifications of criminal prohibition and punishment. As I note in my response, Walker's prescriptions are in keeping with much that is now in vogue in legal education reform, and I suggest some reasons for skepticism about what Walker advocates. (For a very different response to Walker's article that, while touching on distinct issues, is more sympathetic to it and well worth reading, see Professor Chad Flanders's piece).
The exchange got me thinking about the range of connections between Criminal Law and Catholic Social Thought, a seminar I just taught for the first time at St. John's. One could approach the question of connections between the two in a number of ways: a first might be substantive -- for example, involving issues like the legal and moral propriety of the death penalty, or the range of reasons why it might be legitimate to punish someone. Another might compare the ways in which ideas of "rights" as compared with ideas about "human dignity" shape the way that we think about the function of criminal law. A third, if the course is approached more distinctly from the point of view of what "social justice" demands, might be to ask questions about whether criminal law is (or is capable of) providing it. Yet another -- one that occurred to me as I read Russell Powell's post below -- is about the relationship of crucial terms like "complicity" in criminal law (what gives rise to accomplice liability) and "complicity" as it is used more commonly, or even from a theological point of view.
But the connection that I want to focus on here is more a meta-question. It is the question of why it is that a course like Catholic Social Thought and the Law, or Criminal Law, ought to be worth studying at all in law school.
Continue reading
Yesterday, Susan Stabile in reflecting on the End Times observed that one problem with predictions about the end of the world (aside from their unreliability) is that they encourage people to stop pressing for the Kingdom of God on earth. Her post reminded me of Joan Chittister’s outstanding book The Gift of Years: Growing Old Gracefully. Chittister speaks to many groups in this book, but she particularly addresses the old person who has retired, who has lost identity and tight connections to the workplace, who is painfully aware that death is much closer than she would like it to be, and who thinks that her real life is over. Chittister regards this as dying in spirit while physically alive. She maintains that old age should be a time of adventure, a time to do things you never have done before, a time of responsibility, a time to help others in ways you could not do before and a time to share the wisdom gathered by so many years of experience, a time of wonder and thanksgiving, a time to appreciate the beauty of creation and the gift of life left to be lived. Chittister argues that old age is special not only as a new stage in life, but also because there is no escaping the need to confront the meaning of life by being caught up in the competitive distractions of the drive for money, status, and power in the workaday world. Old age is a time to deepen the spirituality developed or ill-developed over a lifetime.
The book also speaks to those who are not yet old. It has wise things to say about the preparation for old age, about the meaning of life and spiritual depth, and, although she does not mention it, I think that it has something to say about how a Christian should approach the Sabbath. But this is not a Christian book in its focus (though Chittister is a Catholic and all Christians should find it appealing). As Tikkun editor, Michael Lerner writes, “The Gift of Years is an amazing compendium of wisdom not only for people facing aging or providing support, but for everyone who wants to live a spiritually centered and balanced life.”
There is a drive for a ballot initiative in San Francisco that would make the performance of a circumcision on a minor illegal "except where "the operation is necessary to the physical health of the person on whom it is performed because of a clear, compelling, and immediate medical need with no less-destructive alternative treatment available." There is no religious exemption in the proposed language.
Paul Horowitz expresses the view that the initiative would likely pass constitutional muster despite its disproporationate effect on those who seek circumcision for religious reasons. He also raises the question, I think an important one, of whether this is wise policy.
