Interesting Times

Important new analysis from Judge Luttig: A 2009 Supreme Court ruling may require Barrett to recuse herself from 2020 election cases https://t.co/aqS43uV7Mv

— Carrie Johnson (@johnson_carrie) October 17, 2020

It's no appeal to fame by association to say that I knew Mike Luttig (as he was known then; he became "J. Michael" and I became "Robert M." Such are the vagaries of adulthood).*  I went to school, from 2nd grade through 11th, with him in Tyler, Texas. 2nd grade because he's almost exactly a year older than me, putting me a year ahead in school.  He's as far to the right as I am to the left, no surprise (on his part) as he grew up in Tyler and clearly has been a life-long Republican (I wonder if he switched as Texas went from one-party Democratic to one-party Republican.  Probably, but who knows?)  I looked him up on Wiki to be sure it was the same guy (just double checking memory), and I found this, which I didn't know:

Luttig's father, John Luttig, was fatally shot in 1994 in a carjacking by Napoleon Beazley, who, at the time of the crime, was a seventeen-year-old minor.  Luttig testified in the sentencing portion of the trial, providing testimony supporting imposition of the death penalty.  Beazley was convicted, condemned to death, and eventually executed after twice appealing to the Supreme Court, where Justices Antonin Scalia, David Souter, and Clarence Thomas recused themselves because of past associations with Luttig. Scalia recused himself because Luttig had clerked for him, and Justices David Souter and Clarence Thomas recused themselves because Luttig led the George H. W. Bush Administration's efforts to gain the Senate's confirmation for them.

I note that not for the murder (which is a terrible thing, made worse because it was adjacent to a car theft), but because so many justices recused themselves from the appeals of the death penalty Luttig testified in support of.  (I am also anti-death penalty, but offer no judgment on his actions in this matter.)  I understand the need to recuse in those appeals; what I wonder is how that would apply to any appeal to the Court in November or December by Trump on an electoral challenge, where Justice (?) ACB would be concerned.

I'm not well versed in this area of law (or any area of law by now; I haven't practiced in 30 years), but Luttig's summary of that "2009 Supreme Court ruling" is interesting:

Caperton involved a litigant who spent $3 million to help elect a West Virginia Supreme Court of Appeals justice, who then voted to reverse a $50 million damage award against his benefactor. The U.S. Supreme Court found that the judge should have recused himself. Writing for the majority, Justice Anthony M. Kennedy said that recusal may be constitutionally required even where a judge is not actually biased, if there is a “serious risk of actual bias.”

The appearance of conflict of interest would, I thought, have been the key in this ruling.  Maybe it was, and Luttig's analysis is ill-advised.  I can't say.  But the language he quotes here is about a "serious risk of actual bias."  This kind of risk, the majority held, requires by the Constitution a recusal from the case by a federal judge.  My understanding is that Supreme Court justices don't like recusal being forced on them (by whom, among other problems?) and would chafe at the idea the Constitution holds that recusal can be required.  I tend to agree with Scalia (!), at least as Luttig quotes him:

Justice Antonin Scalia, while criticizing the majority for constitutionalizing the judge’s recusal decision “in a manner ungoverned by any discernable rule,” wrote that “in the best of all possible worlds, [judges should] sometimes recuse [themselves] even where the clear commands” of the Constitution don’t require it.

But that's the basic idea of recusal:  whether required or not (and who would require it of a Justice?  The Chief Justice?  That role is a title, not a superior office or even first among equals.  After all, who tells the Chief Justice to recuse?).  And there may be opinions that have established a Constitutional standard for recusal; but even such standards are subject to interpretation because, again, who tells a Justice they must recuse?  Would the rest of the Court ever take such extraordinary action?  It would shatter the comity of the Court, and not to the advantage of the nation.

Luttig's analysis returns to grounds I thought more important to such an analysis (which doesn't make him right on this point, it just fits my understanding better);

The question for Barrett, if it arises, will not be whether she personally believes she can be fair in deciding an election case but, rather, whether a reasonable person would conclude that her impartiality would be inescapably overborne by the flood of influences brought to bear on her.

The "reasonable person" is an old legal standard from English common law.  It's not, except by implication and history, a Constitutional standard.  That doesn't mean it's opposed by the Constitution, but in the context of a Constitutional requirement to recuse, I want to clarify that point for the non-lawyers.

Luttig makes things a bit clearer, at least for me, and answers my question (or not?) about why and when Justices recuse:

Among these pressures are her nomination, due to Justice Ruth Bader Ginsburg’s death, little more than a month before the election, the unavoidable fact that Barrett would be deciding the political fate of the president who nominated her only weeks ago, and President Trump’s ill-timed calls for Barrett’s swift confirmation so that she can be seated in time to decide the election cases. These bludgeoning pressures alone are at once singular and unprecedented, unsurpassed and quite possibly unsurpassable in their magnitude. By comparison, the pressures believed put on the West Virginia judge in Caperton pale.

But while Caperton would seem to apply to Barrett’s decision with proverbial vengeance, only the Supreme Court knows whether this precedent applies so as to require her recusal from the 2020 presidential election cases. And only Barrett will know whether, in Scalia’s words, even if Caperton may not require her recusal, it counsels that recusal.

So could the 8 formally tell the 1 to step away from this one?  I honestly don't know.  Then again, peer pressure is a powerful thing; maybe they just need to drop a few hints in chambers to the newest member.

Judge Luttig says ACB was justified in not answering the question of whether she would recuse from any election related cases involving Trump.  Sen. Whitehouse begs to differ, and offers his analysis of Caperton which is different only in emphasis from the outcome the Judge reaches.  It's worth quoting more than a few lines:

In 2009’s Caperton v. A.T. Massey Coal Company, the Supreme Court considered whether the Constitution’s guarantee of due process required West Virginia Supreme Court Justice Brent Benjamin to recuse himself from an appeal of a $50 million judgment entered against a coal company. Benjamin joined the bench after the coal company’s chief executive spent $3 million to help Benjamin win election to the court. The plaintiffs sought Benjamin’s recusal, but he refused, insisting he wasn’t biased. He then cast the deciding vote to overturn the jury’s verdict against the coal company.

The Supreme Court ruled that Benjamin’s participation in the case violated due process. “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause,” Justice Anthony M. Kennedy wrote. Isn’t that just what would be happening here?

Because of the potential for bias, the Constitution demands recusal here, too, under the factors the court applied in Caperton: Trump had “disproportionate influence” over Barrett’s selection. He has a “personal stake” in any case.

Finally, those disputes are “imminent”; they could already be pending, or filed days after Barrett takes office. This “imminence” requirement is critical. Unlike the nominations of Justices Neil M. Gorsuch and Brett M. Kavanaugh, Trump and Republicans are today talking openly of the court settling the 2020 election, and Republicans are fast-tracking Barrett’s confirmation to beat Election Day.

No one admitted in Caperton that the campaign contributions were made specifically to help the coal company’s case. Here, the president actually announced he’s hoping Barrett will help him keep the presidency by ruling for him in any election dispute.

The White House is resisting calls for Barrett’s recusal, saying that would somehow compromise her “judicial independence.” But that’s not the actual constitutional precedent; and it overlooks that judicial nominees — including Barrett — commonly commit to recusals in their committee questionnaires.

I think just in terms of argument Sen. Whitehouse makes the better case; but Judge Luttig would not disagree with the result, even if he wrote a concurring opinion, rather than joined the Senator's.

May you live in...well, I don't know.  I think the times have been interesting enough for awhile.

*then again, I once worked for a lawyer who is now a sitting Federal judge and who has handed down some rulings I'm quite proud of him for (the 5th Circuit, on the other hand, has reversed him on those, being a frightfully ideological cabal).  He's a Republican appointed by W., which tells you a lot about the 5th Circuit.  And I owned a chair for many years of my early married life once owned by Judge Wayne Justice, the judge famous in Texas for desegregating the Tyler schools and forcing Texas to reform it's antiquated and antediluvian prison system.  He was probably the most hated man in Tyler (where he lived) for years.  I have my connections to legal fame.  I just don't parade them about. [insert smart-aleck emoticon here]