Gotta love our constitutional scholars!
A bit of background on Jamie Raskin before we get to Jamie’s (we’re on a first-name basis, dontcha know) Guest Essay Opinion piece in the New York Times today. (Suddenly everyone skips past this article?)
Raskin Embraces Role As Constitutional Scholar (The Hill, 2019)
Rep. Jamie Raskin, the often-disheveled former constitutional law professor, has carved out one of the most important roles in the House as Democrats contemplate their investigations of President Trump in the wake of the Mueller report.
The Maryland Democrat serves on two key committees — Judiciary and Oversight and Reform — that are central in the Democrats’ budding probes. He’s also secured a seat this term on the powerful Rules Committee, which shapes every piece of legislation just before it hits the floor.Perhaps most importantly, Raskin is a member of Speaker Nancy Pelosi’s (D-Calif.) leadership team, which frequently leans on him when the discussion turns to complex questions surrounding the Constitution — and the accusations that Trump is flouting it.
It is, by Raskin’s own admission, not the sexiest role on Capitol Hill. But in many ways, his life’s work studying the founding documents has made him a perfect fit for a divisive moment in American history.
“For me, everything comes back to the Constitution. … For most people, that’s unbelievably esoteric and dry. And for me, it’s spellbinding,” Raskin said in a long and wide-ranging interview in his office on Capitol Hill that took place just before the Department of Justice’s release of the conclusions of special counsel Robert Mueller’s report. “I love reading about the precedence of the House of Representatives. I love reading about Jefferson’s manual. And I love studying the rules of parliamentary procedure.”
Raskin’s role as constitutional consultant has been particularly prominent with Trump in the White House and Democrats probing a long list of controversies swirling around his tenure, such as whether the president has profited illegally from the office.
“I’m definitely not the most telegenic member. I definitely don’t raise the most money of the members,” Raskin said. “But I might be the one who’s most drenched in constitutional law and the rules of parliamentary procedure.”
Jamie Raskin: How to Force Justices Alito and Thomas to Recuse Themselves in the Jan. 6 Cases
Mr. Raskin represents Maryland’s Eighth Congressional District in the House of Representatives. He taught constitutional law for more than 25 years and was the lead prosecutor in the second impeachment trial of Donald Trump.
Many people have gloomily accepted the conventional wisdom that because there is no binding Supreme Court ethics code, there is no way to force Associate Justices Samuel Alito and Clarence Thomas to recuse themselves from the Jan. 6 cases that are before the court.
Justices Alito and Thomas are probably making the same assumption.
But all of them are wrong.
(more after the jump)
Cutting to the chase in Jamie Raskin’s NYT opinion piece …
Everyone assumes that nothing can be done about the recusal situation because the highest court in the land has the lowest ethical standards — no binding ethics code or process outside of personal reflection. Each justice decides for him- or herself whether he or she can be impartial.
*snip
The U.S. Department of Justice — including the U.S. attorney for the District of Columbia, an appointed U.S. special counsel and the solicitor general, all of whom were involved in different ways in the criminal prosecutions underlying these cases and are opposing Mr. Trump’s constitutional and statutory claims — can petition the other seven justices to require Justices Alito and Thomas to recuse themselves not as a matter of grace but as a matter of law.
The Justice Department and Attorney General Merrick Garland can invoke two powerful textual authorities for this motion: the Constitution of the United States, specifically the due process clause, and the federal statute mandating judicial disqualification for questionable impartiality, 28 U.S.C. Section 455.
*snip
The constitutional and statutory standards apply to Supreme Court justices. The Constitution, and the federal laws under it, is the “supreme law of the land,” and the recusal statute explicitly treats Supreme Court justices like other judges: “Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The only justices in the federal judiciary are the ones on the Supreme Court.
This recusal statute, if triggered, is not a friendly suggestion. It is Congress’s command, binding on the justices, just as the due process clause is. The Supreme Court cannot disregard this law just because it directly affects one or two of its justices. Ignoring it would trespass on the constitutional separation of powers because the justices would essentially be saying that they have the power to override a congressional command.
When the arguments are properly before the court, Chief Justice John Roberts and Associate Justices Amy Coney Barrett, Neil Gorsuch, Ketanji Brown Jackson, Elena Kagan, Brett Kavanaugh and Sonia Sotomayor will have both a constitutional obligation and a statutory obligation to enforce recusal standards.
Indeed, there is even a compelling argument based on case law that Chief Justice Roberts and the other, unaffected justices should raise the matter of recusal on their own (or sua sponte). Numerous circuit courts have agreed with the Eighth Circuit that this is the right course of action when members of an appellate court are aware of “overt acts” of a judge reflecting personal bias. Cases like this stand for the idea that appellate jurists who see something should say something instead of placing all the burden on parties in a case who would have to risk angering a judge by bringing up the awkward matter of potential bias and favoritism on the bench.
But even if no member of the court raises the issue of recusal, the urgent need to deal with it persists. Once it is raised, the court would almost surely have to find that the due process clause and Section 455 compel Justices Alito and Thomas to recuse themselves. To arrive at that substantive conclusion, the justices need only read their court’s own recusal decisions.
Last paragraph of the opinion piece (looks to me like Jamie is throwing down the gauntlet)
But the Constitution and Congress’s recusal statute provide the objective framework of analysis and remedy for cases of judicial bias that are apparent to the world, even if they may be invisible to the judges involved. This is not really optional for the justices.
I look forward to seeing seven members of the court act to defend the reputation and integrity of the institution.
Read the whole thing!
And before you say “one neat trick”, remember that Jamie Raskin is a constitutional scholar, and I would bet that he knows whereof he speaks.
Ksmiami
He’s amazing. He served on Harvard Law Review with my friend. Go Jamie!
WaterGirl
I thought I was breaking news, but now I see that as I was putting the post together, you all were talking about this on the “no time for a holding pattern” thread. Oh well.
prostratedragon
Time to join the battle.
J. Arthur Crank
I have not read all of the linked documents, but is a “knee to the groin” listed as a possible remedy? I am not sure “grace” and a “matter of law” are sufficient here.
Chris
Good for him. I don’t care if it’s “one weird thinking;” the more Democrats are out there talking about ways to keep the Supreme Court under control, the better. It can’t be Biden for a variety of reasons, but Democratic senators and congresscritters in reasonably safe seats can and should keep doing this.
WaterGirl
@J. Arthur Crank: If we’re voting on that, I am not opposed.
bbleh
It’s also a neat way to point out publicly, yet again, that the Alito / Thomas problem is also a problem for the other Justices.
But I can’t see it actually happening. Even if it somehow worked and they recused it would still be 4-3, and the 4 would be thoroughly pissed at everyone involved with the petition. And I can’t see the 4 going along with it in the first place — they’d get their backs up and come up with some reason to deny it. “The nerve of those people! Why it’s unheard of!” Hell, they’d probably let Alito write the opinion.
ShadeTail
I’ll believe that this will work after I see it working, and not a moment sooner. Those illegitimate fascists on the court have gotten this far by ignoring the law, so why would they stop now?
WaterGirl
@bbleh: I don’t think we can easily predict what would happen here.
This is a really bad look for the Roberts court, and even though we sort of think he’s been shrugging his shoulders and thinking “oh well” about the awful reputation of his court..
I think that if this gets any kind of serious consideration, Roberts might have to join the 3 women. This may be a way to solve Roberts’ unsolvable problem
I predict that we will find out.
Kay
I like Raskin a lot. I get such a sense of decency from him.
Alito’s letter is embarrassing.
WaterGirl
@Kay:
Link to .pdf
Alito’s fuck you letter
Anonymous At Work
The two specific Article 3 hooks are:
1. That judges and justices hold office “during good Behaviour”, which can include Congress legislating and the President approving such definitions.
2. Congress can legislate that the Supreme Court loses its right to jurisdiction if recusal statutes are not followed: “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
That said, if Alito and Thomas ignore such laws and Roberts lets them, that’s a Constitutional crisis, flat statement. My preferred remedy is appointing multiple Assistant Justices with titles like Assistant Justice for Recusal Standards, to put Alito and Thomas in a permanent minority on the Court.
Carlo Graziani
I’m unclear as to the recusal mehanism under the statute. Does the court hold a meeting and vote? Or does Roberts decide? Or do the conflicted judges recuse themselves? How does this process work in the lower courts?
Ishiyama
Well, I like the cut of Prof. Raskin’s jib! Damn straight he knows his stuff! My Constitutional Law Prof. was a big blowhard, who never deserved his reputation as a “scholar”.
artem1s
Once it is raised, the court would almost surely have to find that the due process clause and Section 455 compel Justices Alito and Thomas to recuse themselves.
Compel? The constitutionality of his argument might be sound but the outcome is dependent on those who have already demonstrated that they aren’t reading the same constitution the rest of us are reading. And then there is the matter of who the hell is going to enforce it? If Raskin is so sure this is correct, why hasn’t he started the process for Congress to raise the issue with the DOJ?
sab
@WaterGirl: And we thought you were being responsive
WaterGirl
@artem1s: I would say that publishing this opinion piece is the beginning of Raskin putting pressure on both the DOJ and the SC directly to take action along the lines he has described.
I applaud his effort.
sab
@Kay: Aside from the snotty attitude, isn’t he treating an adverb as an adjective?
Omnes Omnibus
@artem1s: Okay, where would you start?
Anonymous At Work
@Carlo Graziani: In lower courts, if you don’t recuse properly, one party goes to the appellate court and request recusal. Being forced to recuse by your “bosses” essentially is a red flag when going for a higher court and the Judicial Conference of the United States may take up the issue with a formal report.
That being said, I did not see a specific punishment or enforcement clause. My reading is that this violates the standard for Good Behaivour [sic] and can result in Alito or Thomas being dismissed or withholding their pay, but only if Congress acts on it. Roberts might have some power here too. But again, discretion and nothing between zero action and outright crisis level reaction.
MomSense
Even if this were to proceed all SCOTUS has to do is run out the clock. They are already doing that with the immunity matter.
This is going to come down to the voters. That is always how this was going to play out. It’s going to be a nightmarishly small number of voters in 7 states who decide the fate of our democracy.
Ishiyama
@artem1s: Then give them the answer Abe Lincoln gave Roger Brooke Taney in Ex Parte Merryman – your decision will not be obeyed. Who has the political power is the only question. That’s what Clinton & Gore should have done in response to Bush v. Gore, instead of rolling over like frightened puppies. (Just my opinion.)
Abe Lincoln also packed the Court.
Martin
It’s not one weird trick.
The whole point of how the US was formed, was that we govern by mutual consent, and that’s all this is – that’s what checks and balances means. The trillion dollar coin is a weird trick, but the equal protection clause is pretty foundational to the whole exercise.
Rusty
While technically it might be done, there is no way this happens in the real wold. For the court to force a member to recuse would be a sign of open civil war between members. It think a lot of the comity displayed between liberal and conservative members is bullshit, to function at all the members do need to work together to some degree. Realistically you would need a majority pf the court to do this, not just a majority pf those looking to force recusal. I can’t at all see two of the other conservative members joining the liberals (if even they would agree to do this) against their fellow conservatives. It really is the impossible one weird trick. The only remotely possible solution, and I think it’s very remote (but I support 1,000%), is to expand the court. I just can’t see any number of conservative democrats in the senate ever agreeing to this.
WaterGirl
@Martin: Thank you!
Anonymous At Work
@Ishiyama: In defense of Abe Lincoln, this was the same Court that ruled in Dredd Scott v. Sanford, which blew up any chance at compromise and all but forced the Civil War, based on their narrow reading of the Constitution and ignoring vital evidence of the divided nature of the Constitutional writers.
Appointing them as honorary ambassadors to The Maldives Islands and then giving them the honorary one-way armed escort would have been a reasonable solution as well.
Sister Golden Bear
@Martin: Agreed.
Plus even if we can’t make Alito and Thomas recuse, at least force the SCOTUS own it, and remind voters about the corruptness of the current court.
daveNYC
This court has ignored the law, the constitution, the facts, standing, and precedent in oh so many of its recent decisions, but somehow this guy thinks that they’d almost certainly have to force Thomas and Alito to recuse themselves?
Dude hasn’t been keeping up on recent events.
Omnes Omnibus
@daveNYC: Do you think that Raskin is that naive?
Jackie
Nicolle Wallace was discussing Alito’s latest brazen BS and had Michael Steele on. He opened with “Well now we know who wears the flags in that household,” in his deadpan trademark tone of voice. Everyone on the panel burst out laughing, before settling down to discuss the seriousness of Alito’s hiding behind his wife and openly flaunting his MAGA while thumbing his nose at Americans stating he’s not going to recuse and “nobody can make me.”
Geminid
@Omnes Omnibus:
“We’re gonna need a bigger turnip truck.”
Snarki, child of Loki
@Anonymous At Work:
“Appointing them as honorary ambassadors to The Maldives Islands and then giving them the honorary one-way armed escort would have been a reasonable solution as well.”
The Maldives have some islands that are just barely above the water, which are sadly lacking in MAGA ambassadors.
Ishiyama
@Anonymous At Work: Abe Lincoln don’t need a defense – he was dealing with Treason, with a capital T. To me, Bush v. Gore was as naked a power grab as Dred Scott, but the leaders (so-called) of my party chose to surrender, rather than fight.
Two rabbits
My only input (while watching too much MSNBC), is that they said the Judicial Comm (Senate?) has very little leverage over the Supreme Court. But one thing they do control is the Court’s term. I would suggest a term of Jan 1, 3am to Jan 1, 3:04am. Attendance mandatory! Perhaps they could tent the SC Building, and fumigate the other 364 days.
I suppose it won’t help this term, but if was setup that way, maybe a few recusals could alter the dates before it started.
Baud
@Ishiyama:
What exactly did you want them to do? We didn’t even have Congress in 2000.
Manyakitty
@WaterGirl: nevertheless. Only for you and Jamie Raskin 🥰 would I click on a link to the Vichy Times. Very glad I did. Bring. It. On.
Another Scott
@daveNYC: Raskin is a smart dude who has looked about 15 moves ahead.
Of course, his piece is preaching to the choir and talking about ideals and the way things would work if the SCOTUS followed stare decisis and all that.
It’s a piece of rhetoric.
But, that’s part of the process of forcing change.
“Look, our laws and founding documents say that this is what must happen, but these few non-elected people with lifetime appointments refuse to follow them. We’ve appealed to their sense of fairness, justice, and that is right. They’ve refused. Such monsters cannot set the ceiling of our national aspirations to perfect our democracy. We must act now to change the courts and the SCOTUS so that this travesty is fixed, etc., etc.”
Raskin knows it’s not going to move Thomas and Alito. They’ve shown that they think they’re impervious. But it might help sway enough voters to keep the Senate and expand the margins to make actual changes possible next year.
My $0.02.
Cheers,
Scott.
KCSteve
I was extremely interested in Rep. Raskins take on this subject until I got to this:
“The Justice Department and Attorney General Merrick Garland can invoke two powerful textual authorities for this motion”
No need to read any further.
artem1s
@Omnes Omnibus:
Raskin is in Congress, why not ask him why he hasn’t started?
Gretchen
@artem1s: because he’s in the minority party?
Jackie
@Gretchen: Ding Ding Ding!
Or…. Exactly!
Eta: @ artem 1s: Where’s Comer or Jordan during this Constitutional crisis?
lurker
dropping in to mention a couple of things
one, I often only get to a few posts each day, and made a point of reading this one due to subject matter … more will be consumed if they show up
two, Raskin presents a pretty good case based on my quick reading. the other justices will be very slow to take this up even if a party requests it, due to the comity among justices mentioned previously in comments. more likely, this will be a threat Roberts can use in private to attempt to persuade Alito and Thomas to recuse. unfortunately, from my point of view, two things mean that will not work. one, all SCOTUS justices are pretty arrogant and those two are both pretty shameless even among the group of nine. so, that brings us back to the possibility of a petition that the court has to act on. if they get to that point, are five of them upset enough to move forward? the big question marks in my mind are Barrett and Kavanaugh. both likely have stuff in their backstory that they would not want to deal with in this manner. to some degree that holds for all of the justices, even if Alito and Thomas are making things look worse for all of them right now.
fingers crossed, but I do not expect this to lead anywhere. it might eventually lead to Raskin getting some stronger language into the statute or investigating if they are in the majority soon..
ETA: Durbin could do something with this now, but he does not seem the sort
Ksmiami
@KCSteve: Garland is the worst.
Torrey
I’m a little surprised at the number of dismissive comments about why this won’t succeed, as if the only definition of success in this case was immediate donning of hair shirts and breast-beating repentance from Alito and Thomas, followed by a 4-3 vote of the others for recusal. It would be nice, of course, but we all know the chances of (at best) the 4-3 vote for recusal are iffy at best.
However, Raskin is a smart man. By putting the idea forward in the op-ed, he’ll get it out there as a possibility. As Another Scott points out at #37, it’s rhetoric, but it isn’t rhetoric aimed at moving the Thomlito twins; I think Raskin’s smarter than to think that will happen. But there are other consequences to his proposal. First, in general, voters tend to ignore the fact that the Supreme Court is the result of presidential and Senatorial elections. Getting this idea out there puts it in front of voters and makes it part of the decision-making process as they consider how–or whether–to vote. Second, proposing any kind of action makes the point that action is possible. As Sister Golden Bear points out at #27, it forces the Supreme Court to own it. They can’t just sit there–they are at least faced, on a daily basis, with the fact that two members are egregiously in violation of SC’s own recusal rules, and that people are noticing.
Finally, Raskin is putting content into the history books. If nobody does anything, the situation is just a minor blip on the radar. If there’s debate about actions to be taken, it becomes part of the history of the court, and Roberts, certainly, is aware that his name will be attached to it. If it becomes a Big Effing Deal, it may sway voters, it may embarrass the other conservatives on the Court, it may be part of the history of the Party’s and the current Court’s corruption. It may even be part of the history of a change in the practices of selection of Supreme Court justices. One can always hope.
Jackie
@Torrey: Unfortunately, the choice of justices is solely determined by which party controls the Senate.
Thanks to McConnell, if a justice seat becomes available, the Senate Leader can postpone the confirmation of a new justice until the “correct” president is elected – OR already in office ie RBG death weeks before the next presidential election -while the “correct “ president is IN office.
Jay
So, recently, I saw a version of the “Don’t Tread on Me” flag, where the rattlesnake was replaced by the Poop Emogi.
Can somebody swap that out at the Alito’s house for what ever flag they are flying now,
and maybe leave a steaming bag of poop in a paper bag, on their front porch, on fire?
bjacques
@Jay: If a North Korean poop balloon landed in his yard, I would not consider it an act of war
daveNYC
@Omnes Omnibus: Is there any particular reason not to? He chose those particular words for his op-ed, and there’s no lack of examples of other constitutional law types who clearly haven’t come to grips with the fact that all their theories and analyses count for nothing with a SCOTUS that’s gone full Calvinball.
You can see it other instances. The Senators who support the filibuster because they still believe in the Senate as the World’s Greatest Deliberative Body. Garland appointing a GOP hack to investigate Biden because he believes that the DoJ, The Law and its Servants, are above politics. Biden’s continued support for Isreal that’s based on formative experiences from back when Israel was less genocidally fascist and were actually under threat of attack by their neighbors.
Is there any particular reason why I shouldn’t think that he’s naive on this subject?
randy khan
As always, the Justices will do what the Justices do, with no appeal. That said, I’m willing to think about whether this is a good idea.
I see three things to consider:
1. If you’re the Biden Justice Department, how would doing this affect your relationship with the Court? Obviously it makes Thomas and Alito permanently hostile to you, but that’s not really much of a change. More important is how the other Justices react. I can’t say, but it’s a consideration. It might actually be worth considering whether there’s someone else who can file this request for a specific case.
2. To what extent will *any* of the other Justices vote to kick another Justice off the case? I’m including the three Dem-appointed Justices here. The answer may be that you don’t get anybody unless you get one of the Republicans, and that wouldn’t be a great result. (In that case, you may not even get a decision.)
3. In political terms, is there a benefit whether you win or lose? Winning obviously has a great benefit, but even if you lose there may be a benefit in terms of making it starkly clear that the Republican Justices will protect their own regardless of the facts.