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February 20, 2004

Should Judge Warren Recuse Himself?

There's an interesting comment thread going on in my recent Scalia post that i'd like to open up to a wider discussion. Here's what's happened so far:

First, Coyote brought up a pending case involving Dick Cheney, in which he believes Justice Scalia should recuse himself.


maybe the kids at amherst are protesting the death of credibility of a supreme court justice?

face it, the outright refusal to step away from the cheney case does tend to raise an eyebrow or two.

there is ex parte and then there is EX PARTE..

the supreme court should be far above all appearances of impropriety, and spending a weekend with someone who has a lot to lose in a case that might be decided by your vote does indeed smell a bit inappropriate.

i agree with Coyote. Scalia should recuse himself. Whether or not Scalia can be unbiased is irrelevant. It's the perception of bias and conflict of interest that requires his recusal. Coyote continued:
scalia's actions have nothing to do with left or right. the point is that he is tossing his own credibility out the window by engaging in ex parte communication with someone who has a case in his court.

there are two possible outcomes:

he finds for cheney, thereby removing any chance that his opinions are not seen as partisan political crap. this only serves to taint his leagacy. i'm sure scalia does not want his legacy to be one that screams "bought and paid for".


he finds against cheney in order to save face, thereby screwing the conservative cause of keeping the vp's energy discussions secret. i'm pretty sure that no one on the republican side of the fence wants those dicussions made public, as it would indeed add to list of problems facing the current administration.

if anything, consevatives should be very concerned about such a breech, as any short term victory (cheney winning his case) would be grossly overshadowed by the fact that this inappropriate behavior might well take the teeth out of any future rulings scalia might make. not to mention that the whole thing only serves to chip away at the honor and reputation of the supreme court. those nine are supposed to be above back room politics..

if i were a conservative, i'd be worried shitless that scalia will save his own reputation rather than look like a corrupt ass in the history books.

Then i gave my two cents worth, picking up on the judicial bias and conflict of interest thread, and analogizing the situation with the Mayor Newsom lawsuit and the attempt to block the San Francisco gay marriages by seeking a court injunction. i said:
Judges hate to recuse themselves even when the conflict seems obvious. It's sad. Take for instance Judge Warren, who's going to hear the injunction case against what Mayor Newsom is doing in San Francisco. Judge Warren is gay. Conflict? He apparently doesn't think so.
Then Hugo raised this strong challenge.
Annika, does that line of reasoning mean that Thurgood Marshall should have recused himself from hearing civil rights cases? Or that O'Connor and Ginsburg should recuse themselves from abortion cases? My dear girl, whom I love and admire, you come close to an unpleasant ad hominem argument there...
Then, Coyote said:

maybe judge warren should recuse himself if he was spending the weekend with the mayor of san francisco, chasing boys or whatever.. your intolerance and prejudice are showing here :-(.

you assume that judge warren's sexual preferances will cloud his judgement when it comes to gays?

thats exactly like saying that the revered scalia would not be able to judge fairly on a case involving mr bush sr's son, you know, the guy who was VP when Ronnie Regan appointed him to the court..

im with Hugo on this one.

Et tu Coyote?

i tried to clarify my position.

You don't understand the purpose of recusal. It doesn't matter whether Warren is influenced or not, if he upholds the marriages, his decision will be tainted by the perception of a conflict, the perception of bias, and for that reason he should recuse himself.

Recusal is required not because of a fear of actual bias as much as a concern for perceived bias, which casts doubt on the independence of the judiciary. Apply your own reasoning to Scalia then, why don't you. If he tells us he won't be biased, why shouldn't you believe him and just leave it at that? You said it yourself, whichever way he decides will be tainted because of the perception. That's why he should recuse himself.

It is certainly reasonable for somebody to believe that a gay judge, who is at present personally excluded from participation in marriage, might have a personal interest in the outcome of a case involving the expansion of marriage's definition. He stands to personally gain or lose a fundamental human right, depending on his decision.

The Federal Code of Judicial Conduct says: "Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The California Code of Judicial Ethics says the same thing and adds that "a judge shall disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no actual basis for disqualification."

And i'm tired of being called prejudiced when it comes to this issue. i support gay marriage. This is a huge issue and i want to see it done right, especially since most of the country is against it. How does that make me prejudiced?

Oh, and, Thurgood Marshall, a personal hero of mine, didn't judge cases like Brown vs. Board of Education because he wouldn't have been allowed to! That's why he argued them instead. And if O'Connor and Ginsberg were pregnant and planning to have an abortion at the time they were hearing an abortion case, absolutely, they should recuse themselves.

Then Matt filed his amicus curiae brief against me. Matt said:
First: I know the question was rhetorical, but I can't resist responding. The last time Scalia voted with the majority was January 26--the last time the Court issued opinions. Scalia's most famous for his dissents, but he doesn't always dissent!

Second: I think the case for recusal for Scalia is much stronger than for Warren. There has to be a reasonable limit on what factors require recusal. Every judge has some interest in most cases, even if it's only in the sense that he agrees or disagrees with the legal principle(s) pertinent to the case. The fact that a judge may have a personal policy preference on an issue does not automatically give rise to a reasonable inference that the judge will allow that preference to improperly influence his decisions (imho, of course). I think the fact that a judge is a member of a minority group is too weak a basis, without more, for requiring that judge to recuse himself from cases involving that minority. It requires us to infer something about the judge's preferences based on his class membership (always an iffy proposition), AND to assume that this speculative, inferred preferences will improperly influence him. By that rationale, it would seem to me that no judge who's a member of a racial minority should ever sit in an employment discrimination or similar civil rights case brought by a minority (or at least a minority from the same group as the judge), no woman judge should ever sit in a sexual harassment case brought by a woman, and very few judges should ever sit in cases involving age discrimination (since judges tend to be older folks). Similarly judges who are devout adherents of most mainstream religions (like Scalia) shouldn't sit in cases involving asserted gay "rights" (since nearly every orthodox religion implicitly or explicitly condemns the idea of gay marriage), and judges who are gun owners shouldn't sit in cases construing the Second Amendment or state equivalents. Etc., etc., ad nauseum.

Of course these are ultimately metaphysical arguments. There's no way for us to know to a certainty what is going on or will go on in a judge's head, so typically all we can do is make educated guesses about what's likely to unduly influence him/her. But those guesses can't be knee-jerk; there has to be a little reasoned analysis. It's not "unreasonable" in the common sense of the world to think that membership in a general class is prima facie evidence of potential bias significant enough to require recusal. But I think it's "unreasonable" in any sense of the word that takes into account the realities of our judicial system.

Matt, i'm tempted to take back all the nice things i said about you. ; )

Scipio added some background:

Chief Justice John Marshall refused to recuse himself from several cases that he had been involved in; one where he had been a lawyer for one side; another where he had been a judge on the case previously; and a third where he had a demonstrable pecuniary interest in the case.
And Coyote further clarified his own position:

What i meant about the prejudice is along the lines of what Matt has written. you pre judged that warren cannot make a just ruling because he belongs to the minority involved in the case.

the whole anology is some distance from scalia's predicament, when a week-end long ex parte sesssion with someone who has a case in front of him is most certainly a valid reason for a recusal.

but.. from the arguments you have made, it appears that you would indeed agree that scalia's best course would be to recuse himself.

That is correct, Scalia should recuse himself. He won't, though. Just as Judge Warren won't. Like i said, judges hate to recuse themselves.

But still, i think my opponents are missing my point. It's the perception of bias and the perception of conflict that requires recusal. It doesn't matter whether Warren can give an unbiased ruling. i'm not arguing one way or another whether he is in fact biased. It doesn't matter. He stands to gain from the outcome of the case. That's obvious. At present, as a gay man, he does not have the right to marry another man. It is now within his power to help give himself that right. That's a conflict. He should recuse himself because the perception of judiciary independence and non-bias is at risk if he doesn't.

Ask youself this. If you were a lawyer for the plaintiffs, would you consider appealing an adverse ruling on the injunction, based on Judge Warren's conflict? Of course you would. You'd be an idiot not to. If you support gay marriage, why give the plaintiff's that appealable issue?

What if this were about money? Maybe you'd be able to recognize the obvious conflict better. What if Judge Warren owned a '92 Taurus and a class action case came before him, brought by plaintiffs who claimed that all owners of '92 Ford Tauri deserved compensation for some defect. If the judge ruled in their favor, he would gain a benefit that he did not have before hearing the case. Should he recuse himself then? What if you and i both agreed that Judge Warren is a man of integrity who would not let his personal stake in the outcome affect his decision? The answer is clear. He should still recuse himself.

Matt said "The fact that a judge may have a personal policy preference on an issue does not automatically give rise to a reasonable inference that the judge will allow that preference to improperly influence his decisions." Of course. But when it is within a judge's power to give himself a benefit that he would not otherwise have, there is a reasonable question raised about his impartiality. The standard is not the actual existence of partiality or bias. How could one ever prove that? It's an objective standard. Does it look like he might not be impartial. If the judge stands to gain personally by the outcome, i believe the conflict is obvious.

Matt also makes other analogies, such as "it would seem to me that no judge who's a member of a racial minority should ever sit in an employment discrimination or similar civil rights case brought by [that] minority . . . no woman judge should ever sit in a sexual harassment case brought by a woman . . ."

Those examples are different than the situation with the gay marriage injunction. A woman judge does not stand to personally gain anything or lose anything by her rulings in a sexual harrassment case involving an individual plaintiff. Only the plaintiff can gain or lose, monetary damages in that case. In a sense, a woman judge gains when the rights of all women are upheld, but i agree that's not enough to require recusal. How could the system be arranged otherwise?

My point is, as a supporter of gay marriage, i want to see it done right. Ideally i'd have liked to have seen this kind of social progress made through the political peocess. By that i mean through acts of a legislature of elected representatives, not unelected judges. But, i'm realistic, too. This country is a long way from expanding the right to marry by legislative means. By going through the courts, Newsom and his supporters have forced the issue, and if it has to happen that way, i'd like to see it done with as much legitimacy as possible.

Posted by annika, Feb. 20, 2004 |
Rubric: annikapunditry



i love it that we agree and argue anyway!

it seems to me that we are both dancing around the same issue, pretty much in step and looking good.

we just happen to be dancing to different songs.


i am in agreement with you that judges should be more open to the idea of recusal..

in warren's case there are some good arguments for recusal, in scalia's case, it is rock solid.

i will also add that in scalia's case there is an extraordinary circumstance that is there is no appeal to the court's decision and if an improper or unjust ruling is made, it does in fact become part of the constitution's case law.. for good.

i so love dancing with you.



p.s. is it just me and my macified netscape, or does everyone have to deal with the comments system not wanting to remember their contact info?

Posted by: coyote on Feb. 20, 2004

Well, Annie, what concerns me is that if we ask judges to recuse themselves when even the appearance of bias is a risk, doesn't that mean that in civil rights cases, only straight white men will end up being considered fair and impartial judges?

I think there is a huge distinction between the appearance of bias based on your family ties or business relationships and the appearance of bias based upon your gender, race, or sexual identity. I just think they are utterly different. It's a good discussion, though.

Posted by: Hugo on Feb. 20, 2004

I agree with Annika's comments about perception, especially as I have learned to understand the true definition of the word...

While supervising employees, I've had to tell many of them that they have upset or offended another party, etc. They typically respond that the other party did not understand what was truly intended. It can rapidly devolve into "he said, she said." The only way to make them realize that their behavior must be modified is to point out the fact that HOW A PERSON PERCEIVES A SITUATION BECOMES THEIR REALITY. In other words, a gay judge ruling in favor of gay marriage WILL BE perceived as a prejudiced decision.

We've all had things like this happen. You make a comment that is misunderstood by another person and next thing you know, they're planning to kill your dog - all because the injured party refuses to buy a hearing aid. That's right guys: She thought I called her a bitch, when what I said was "How 'bout a kiss?".

Living in fly-over country, I'm fairly ambivalent about gay marriage, but I will promise you that a straight judge saying this is OK is MUCH better for the cause. Judge Warren should recuse himself if only for appearances.

Posted by: John on Feb. 20, 2004

I think I'm with Hugo on this: if we start doing things based primarily on the appearance of--or, probably better put, the perception of--impropriety rather than actual impropriety, where does it all end? Tangential, perhaps, but it can't help but remind me of the campaign-finance decision, where a supposedly narrow exception for rooting out "the appearance of corruption" in Buckley later became sufficient to undermine one of the core purposes of the First Amendment.

Call it bias on the part of a state legislative staffer if you will, but I agree completely with your last paragraph, Annie, save in one respect: I think your pessimism regarding legislative openness to this issue is unfounded, at least in plenty of states, and more than one might expect. That's why I think the best compromise solution would be, not the egregious intrusion of federal authority in the proposed FMA as drafted, but simply to constitutionalize DOMA: if we'd allow individual states to do as they see fit, Full Faith and Credit and whatever else notwithstanding, more and more will do so over time as they see it not being the end of the world. Moreover, I suspect that would allow the national polarization about the issue, at least to some extent, to dissipate, which is exactly the opposite effect of the present judicial removal of it from the ordinary political process has had.

Posted by: Dave J on Feb. 20, 2004

There's no question that the appearance of impropriety is the proper standard, Annie; I'm aware of it and I'm not disagreeing. But like most semantic formulations in the law, that one ultimately turns out to be fairly unhelpful when we get down to brass tacks. How great an appearance is "reasonable"? And from whose perspective do we judge reasonableness?

As it turns out, I think the hypothetical reasonable person (and that's who we're discussing here, if you think about it) generally shouldn't assign views to people based on their membership in particular classes. Of course many people --if not all people -- actually do that, to one extent or another, but that doesn't make it reasonable. Depending in part on the breadth of the class we're talking about and the factors that make it a class (e.g., "members of the Nation of Islam" or "members of the Black Panthers" versus "black people"), there may even be some truth to those generalizations. Thus the Model Code of Judicial Conduct's Canon 2C, which prohibits judges from membership in organizations that practice "invidious discrimination on the basis of race, sex, religion or national origin." Nevertheless, assuming things about people based on class membership is generally a shaky proposition, particularly when the class at issue is pretty broadly defined, as it is here. To my knowledge not all gays want to get married, nor do all gays believe gay marriage should be permitted, nor do all gays who do believe it should be permitted believe that it should happen through judicial fiat. So to my mind, it doesn't seem improper for Judge Warren to hear the case; the fact that he's gay, in and of itself, just isn't enough evidence for me to conclude that he's not likely to fairly and objectively apply the law. If you told me that he's gay, has been with the same partner for 10 years, and has been saying in public for years that he wishes they could get married, that would probably change my view. But the mere fact that he's gay doesn't do it for me.

Let's try looking at this another way, Annie. You swung at the softball (discrimination cases, where the judge's personal interest would generally be most speculative and intangible), but you were conspicuously silent in response to some of the other analogies I made. (I don't consider them analogies, by the way; I consider them test cases. If we apply a proposed principle to other cases, does it generate results that seem right? If it's a good principle, it should do that. If it doesn't, that indicates a problem.) What about the idea that all gun-owning judges should recuse themselves from hearing cases involving the right to bear arms? Or that religious judges should not be permitted to hear First Amendment Establishment Clause cases? (My original test case involved religious judges and gay rights, but maybe the First Amendment issue will be clearer for you.) Does that seem right to you? Aren't those results the logical conclusion of your rationale?

Echoing Hugo's point somewhat, suppose that back when Brown v. Board had been decided, someone would've said, "white judges should recuse themselves from this case, because they've got something to lose. They're white, you know!" Segregation was still pretty popular among a lot of white folks in 1954, so by your rationale shouldn't we have assumed that they'd all have been pro-segregation? Or at least Justices Clark (from Texas), Reed (from Kentucky), Black (the former Klansman from Alabama), and Minton (from Indiana, cradle of the Klan in the early- to mid-twentieth century)? And yet they unanimously (and I think rightly) held that separate but equal was wrong, despite membership in the class called "white people." Again, assigning views based on class membership is pretty darned shaky, if you ask me.

Posted by: Matt on Feb. 20, 2004


Finally, let's take a step back from the philosophy and metaphysics, and be practical for a moment. This case isn't going to be decided by Judge Warren! Regardless of his decision, it will be appealed. Since it will be almost purely a question of law, it'll be decided de novo by the appellate court(s). For those who don't habla the legalese, a trial judge's decisions on questions of law are entitled to no deference from appellate courts. So ultimately, Judge Warren's decision isn't going to make one bit of difference in the outcome of this case.

Don't worry, Annie: I'm not gonna take back all the nice things I said about you! :-)

Posted by: Matt on Feb. 20, 2004

This is one of the finest blog/comment discussions I have ever seen. Everyone is to be commended.

My 2 cents: "Appearance of impropriety" is a slippery slope. Effective government cannot be about "appearance" or "fairness." It must be about rights. No one has the right to the "appearance of impropriety."

Government about rights is one of the big advantages the U.S. has. The EU is haggling over their new constitution. Their under-construction constitution tries to legislate fairness, and for all I know, "appearance" also. It is a disaster. The under-construction constitution is getting longer and longer, and more and more filled with ennui. "Fairness" will never work as an effective government philosophy.

Posted by: gcotharn on Feb. 20, 2004

"No one has the right to the 'appearance of impropriety.'"

I know you meant to the appearance of PROPRIETY, gcotharn, but I just had the image go through my head of a plaintiff's attorney shaking his fist in the air and shouting "your honor, my client DEMANDS his right to the appearance of impropriety."

Perhaps I get that from going to law school in Louisiana. ;-)

Posted by: Dave J on Feb. 20, 2004

Funny image! I stand corrected. I love South Louisiana. I have noted an "appearance of impropriety" inside a few businesses in South Louisiana. One of my favorite restaurants anywhere is Pat's Cajun Restaurant in Breaux Bridge. You must eat there if you ever get a chance. Take the Henderson exit and follow the signs.

Posted by: gcotharn on Feb. 20, 2004

Yep, ole Billy was right.

Posted by: Casca on Feb. 20, 2004

I just think of the headline "Gay judges rules in favor of gay marriage" and it doesn't quite pass the smell test. I have to agree with Anika that even if the judge made the most rigorously objective ruling in the history of jurisprudence it would still be tainted.

If I had a dog in this fight I would want the ruling to face its inevitable appeals on its merrits not based on the possiblity of a biased judge.

Posted by: Stephen Macklin on Feb. 21, 2004

It's a can of worms. Do you like this headline any better: "Hetero judge rules against gay marriage?"

This example actually proves the argument.

Extended further, in D.C., everybody is friends with everybody. If everyone recused themselves at the slightest hint of impropriety, the Supreme Court would have cases decided by 2 totally reclusive justices.

Posted by: gcotharn on Feb. 21, 2004

"Hetero judge rules against gay marriage?"

In that example, a herero judge does not stand to gain anything personally by ruling either way. There's less of a conflict than in the case of a gay judge giving himself a new right by ruling in favor of gay marriage.

Posted by: annika! on Feb. 21, 2004

Annie: I disagree. Some straight judges might (and no doubt do) consider it very important to them, personally, to live in a society where gays aren't allowed to get married -- just as many whites believed that they were made better-off by denying blacks basic civil rights. In a very real sense, your loss can often be my gain.

Six one, half-dozen the other.

Posted by: Matt on Feb. 21, 2004