No Need to Recuse When Justice Has Been Interviewed by a Lawyer (or by Employee of Party) in a Pending Case

From yesterday’s statement by Justice Alito in Moore v. U.S., responding to a letter from Sen. Durbin that’s available here:

Senator Durbin’s letter expressed the view that recusal is necessary because I participated in two interviews that resulted in two articles about my work that appeared in the Wall Street Journal. The interviews were jointly conducted, and the resulting articles were jointly written, by James Taranto and David B. Rivkin, Jr…. Senator Durbin argues … that Mr. Rivkin’s participation requires me to recuse because Mr. Rivkin, who is both a much-published opinion-journalist and a practicing attorney, is one of the attorneys in this case.

This argument is unsound. When Mr. Rivkin participated in the interviews and co-authored the articles, he did so as a journalist, not an advocate. The case in which he is involved was never mentioned; nor did we discuss any issue in that case either directly or indirectly. His involvement in the case was disclosed in the second article, and therefore readers could take that into account.

There was nothing out of the ordinary about the interviews in question. Over the years, many Justices [citing Justices Breyer, Sotomayor, and Gorsuch and Chief Justice Roberts] have participated in interviews with representatives of media entities that have frequently been parties in cases before the Court, including NPR, the New York Times, CBS, Fox News, National Review, and ABC. Similarly, many of my colleagues have been interviewed by attorneys who have also practiced in this Court {[f]or instance, Bryan Garner has interviewed several Justices, and he argued a case three Terms ago}, and some have co-authored books with such attorneys [citing Justices Ginsburg and Gorsuch]. Those interviews did not result in or require recusal.

Senator Durbin’s request for my recusal is presumably based on the theory that my vote in Moore will be affected in some way by the content of the articles that resulted from the interviews, but that theory fundamentally misunderstands the circumstances under which Supreme Court Justices must work. We have no control over the attorneys whom parties select to represent them, and as a result, we are often presented with cases in which one of the attorneys has spoken favorably or unfavorably about our work or character. Similarly, we regularly receive briefs filed by or on behalf of Members of Congress who have either supported or opposed our confirmations, or who have made either favorable or unfavorable comments about us or our work.

We participate in cases in which one or more of the attorneys is a former law clerk, a former colleague, or an individual with whom we have long been acquainted. If we recused in such cases, we would regularly have less than a full bench, and the Court’s work would be substantially disrupted and distorted.

In all the instances mentioned above, we are required to put favorable or unfavorable comments and any personal connections with an attorney out of our minds and judge the cases based solely on the law and the facts. And that is what we do.

For these reasons, there is no sound reason for my recusal in this case, and in accordance with the duty to sit, I decline to recuse.

Sounds quite right to me. While lower court judges occasionally recuse out of an excess of caution, on the theory that it’s better to avoid any questions by just having some other judge hearing the case, that’s not available to Supreme Court Justices: If a Justice recuses, this may yield a 4-4 division on the Court. As a result, the general view is indeed that Justices should recuse only when they have to, rather than erring on the side of recusal. And, for the reasons that Justice Alito mentions—and given the past practice that Justice Alito mentions—I don’t think recusal is required based on this sort of interview.

Here, on the other side, is the portion of Sen. Durbin’s letter that deals with Moore and the interview:

Moreover, this interview was conducted in part by David Rivkin. Mr. Rivkin is a partner at BakerHostetler LLP and is on the team representing plaintiff-appellants in the case Moore v. United States…. While this case has been pending before the Court, Justice Alito twice sat for interviews with Mr. Rivkin, once in April and again in July. Mr. Rivkin’s access to Justice Alito and efforts to help Justice Alito air his personal grievances could cast doubt on Justice Alito’s ability to fairly discharge his duties in a case in which Mr. Rivkin represents one of the parties.

Note that Sen. Durbin also offers a separate argument as to Justice Alito’s participation in Moore, which Justice Alito didn’t discuss in his opinion:

The relationship between Justice Alito and Mr. Rivkin is also concerning because Mr. Rivkin is counsel for Leonard Leo with regard to this Committee’s investigation into Mr. Leo’s actions to facilitate gifts of free transportation and lodging that Justice Alito accepted from Paul Singer and Robin Arkley II in 2008. This violates the Statement on Ethics by creating an appearance of impropriety.

I’m skeptical of that argument, but I leave it to others.

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