Monday, June 28, 2004

More interesting analysis from Dellinger...

Don't miss Slate's third (annual?) "Breakfast Table" discussion between Slate's legal editor (technically a "senior editor," but she seems to primarily discuss the law) Dahlia Lithwick and Duke Law's own Prof. Walter Dellinger (although his presence seems scarce at the school), available here. Although less entertaining than in years past, they both seem to be on the side of good regarding the Padilla, Hamdi, and Al Odah cases, in that they seem to want some degree of judicial oversight of the Executive's actions in the "war on terrorism," and they are beginning a discussion of the Cheney case, available here, wherein the Court allowed the VP a degree of secrecy by interpreting a federal statute. I find the controversy surrounding Scalia's refusal to recuse himself in the case, because of the duckhunting trip, more interesting than the case itself. Lithwick had previously argued, and this seems to make sense, that vesting the prerogative of recusal solely in the judge himself/herself is the only real option inasmuch as we already trust federal judges to make what they think are proper decisions when they rule on cases (although she thought that Scalia should have chosen to recuse himself, at least initially). In other words, if we can't trust them to recuse themselves when appropriate, then we can't trust them with their day-to-day jobs. Dellinger stated that he thinks Scalia made the right decision in refusing to recuse himself because of the political pressure, but he did not explain his reasoning. I'd be curious to see if it is the same as Lithwick's. Surrounded by mostly liberal friends as I am, it's sometimes hard to explain why I think Scalia's decision was the correct one.


Blogger Chris said...

I happen to think Scalia's decision was correct at least because, as he noted in his memo, the recusal of a Supreme Court justice eliminates that vote from the decision: this increases the possibility of a 4-4 tie (affirming the lower court decision), straining what ought to be the proper functioning of the court. In Newdow itself, the outcome might have been completely different if Scalia had been involved: we may have seen a robust defense of "under God," instead of reversal and vacature based on standing.

June 28, 2004 at 7:52 AM  

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