Thursday, November 19, 2009

The Recusal issue and Justice Scalia's memo

This short post seeks to reflect on the way comparative references have been used in the recent debate on judicial recusals in India. It is becoming clear that our judiciary needs to urgently formulate an official policy on recusals, given the alarming frequency with which problem cases are arising in the Supreme Court alone.

Two of the more insightful pieces of commentary on the issue - by Vivek Reddy and TR Andhyarujina - make references to the unusual memorandum issued by Justice Scalia in March 2004 in what has come to be known as the 'duck hunting' fiasco. Both these commentators do not expressly endorse the views expressed by Justice Scalia in the memo, but they quote portions of the memo approvingly (in the first and last paragraphs of their respective op-eds).

I am quite intrigued by this, because I do not think Justice Scalia's memorandum sets down a standard that is at all persuasive or worthy of emulation. In fact, after reading it, I was even more convinced that Justice Scalia should have recused himself from the case he discusses. (This was especially because, as highlighted here, Justice Scalia went on the duck-hunting trip three weeks after Vice-President Cheney's controversial case was taken up by the Supreme Court).

The full text of the now famous memorandum is available here, and it makes for stimulating reading, given Justice Scalia's noted skill for punchy, combative judicial writing. But good, absorbing writing doesn't always make for persuasive legal reasoning. When the memorandum was issued, it was met with a storm of criticism, and a number of law review articles were authored deconstructing the logic and legal reasoning employed by Justice Scalia (these should come up on a search on any good database of American law). Constraints of time do not allow me to spell out my reasons, but I hope readers will be able to make up their own minds on the persuasive value of Justice Scalia's views by reading through his 21-page memorandum for themselves.

3 comments:

Nick Robinson said...

I've also been very confused by the approving citation to Justice Scalia about his recusal (non)decision and the stance lawyers have taken on this issue overall in the media. I noticed Soli Sorabjee entered into this debate in the Indian Express today (http://www.indianexpress.com/news/conflicts-of-disinterest/543363/) - finding that justices shouldn't recuse themselves very lightly.

Is over-zealous recusal really a problem in India? It seems the opposite is true. So why this sudden rush to defend, particularly by the bar?

Plus, the norm in the US is not the Scalia position, but generally to recuse oneself if there is any apparent conflict (none of this ask counsel if they think there is a conflict - to some extent who even cares what counsel thinks, it's about upholding the system). Last year the US Supreme Court famously couldn't hear a case because too many justices owned shares in companies involved in an anti-apartheid case (http://www.indianexpress.com/news/conflicts-of-disinterest/543363/). I think Alito recused himself something like four times already just because he owns stock in Exxon and Exxon keeps appearing before the Court.

I think recusal when there is any apparent conflict like owning shares in one of the parties makes total sense. Otherwise, you have to worry about a judge (sub)-consciously siding with a company because s/he stands to gain or (sub)-consciously siding against the company because they want to show they aren't being influenced by their financial stake. Either way, you've entered an unneccessary element that isn't about the case. I've gone through a number of the judges assets online. To be honest they don't own that much stock, so this shouldn't be too large of a problem. Even if like in the U.S. most of the judges owned a lot of stock they can get around a lot of conflicts by investing in mutual funds or having blind trusts, etc.

Nick Robinson said...

This was the correct SCOTUS recusal link http://www2.tbo.com/content/2008/may/13/na-high-court-recuses-itself-from-case/

John said...

You can see Rohit Sharma's take on the recusal debate here: http://rainmaker.co.in/index.php?option=com_k2&view=item&id=778:ensuring-that-justice-is-done-the-recusal-question&Itemid=29

The argument is that while recusing themselves, judges need to be alert to attempts to "shop" for judges.