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.
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