Dear Walter:
I’m probably not going to get to read why I’m wrong on the recusal issue because for the most part, we agree.
I do think Justice Antonin Scalia should have recused himself from hearing Cheney. I argued last winter that it just doesn’t pass the “ick” test: having one’s opponent walk into court for a hearing, still giggling with the judge, both in their camouflage hats. But I agree with you that Scalia did the right thing in refusing to bow to pressure from the editorial pages, once he’d decided not to recuse. This fashionable new game of trying to shame justices into recusing every time they manifest signs of human behavior is a dangerous one. If we trust judges enough to let them hear cases, we must trust them enough to accept that if they say they’re impartial, they are. I just don’t see any other alternative.
I agree with you on several other points in the Cheney case. I agree that second guessing whether people are true members of a task force or just de facto members would make for a silly, useless inquiry in any court. I was also persuaded by the argument made in Justice John Paul Stevens’ concurrence: that the preliminary disclosures requested in this case (the names of the vice president’s advisers on his energy task force) would have included the very same information provided had Judicial Watch and the Sierra Club prevailed at trial (the names of the vice president’s advisers on his energy task force). That always struck me as a problem in this case.
But I think Justice Ruth Bader Ginsburg is right when she points out in her dissent that the government never made any attempt to limit the scope of discovery—even when the lower courts practically begged for some to and fro on this. They just appealed ever upward. There was, and is, a sense of such entitlement here that was amply rewarded by the majority opinion. The notion that the government is too busy even to work with the district court at narrowing discovery is part and parcel of this larger claim to blanket authority and secrecy. Which leads me to one small practical point: Why does releasing the mere names of the participants in those discussions squelch the openness and candor of the advice given the president? I understand that there is good reason not to turn over the minutes of meetings. But the distinction between who gives advice to the president and what advice is given still strikes me as a valid one. Can’t we protect both candor and the public’s right to know? Of course the president has a “right to huddle,” as you put it. But doesn’t the public have at least some interest in knowing whose hand is on his rear?
I know, I know. You’ll say FACA draws no such distinctions. But a court might have.
I want to at least touch on the other two important cases that came down yesterday, because the catfighting on the court about judicial sentencing gets more intriguing every minute. In Blakely v. Washington the court decided, 5-4, to apply Apprendi v. New Jersey to the Washington state sentencing system, invalidating a regime in which judges (as opposed to juries) can unilaterally decide aggravating facts that would lead to increased criminal sentences. This may topple the federal guidelines as well. At issue is the Sixth Amendment right to trial by jury, and in an opinion authored by Justice Scalia and joined by Justices Stevens, Souter, Thomas, and Ginsburg (a group that has never hunted duck together, I’d wager) the court agreed to further tie the hands of judges when it comes to sentencing. In Schriro v. Summerlin, the court voted 5-4 (this time flying in the usual Bush v. Gore wedge formation) that the jury-sentencing rule announced in Apprendi would not apply retroactively to death row inmates sentenced before Apprendi came down. Now defendants will die, unconstitutionally, just because of bad timing.
I have lots to say on the topic of judges versus juries, but for starters, I want to just ask you this very open-ended question: It has been fashionable, over the decades, to sometimes believe that juries are fairer and at other times to believe that judges are fairer. I think there are good arguments in both directions. But I do wonder, how did we all fall so in love with juries, and how are we so certain that they are more inclined to get it right? Is this what animates the odd ideological splits on Apprendi and its progeny? Or is something else going on?
A lighthearted little query to chew on this weekend …
Best,
Dahlia
