I recently read that U.S. Rep. Michele Bachmann is coordinating a crash course on the Constitution for the new members that will be joining the House in January.  I was a little surprised that one of the guest speakers for that course will be Supreme Court Justice Antonin Scalia.  While it is not unusual for Supreme Court Justices to interact with members of Congress, it disturbs me that Justice Scalia will be meeting with the Tea Party Caucus behind closed doors.  These very same members of the Tea Party Caucus have very definite ideas and opinions on current national issues that may reach the Supreme Court in the near future.  This recent article in Bloomberg suggests that Justice Scalia’s presentation will “…focus on separation of powers, said Kathy Arberg, the Supreme Court’s spokeswoman.” Doesn’t Justice Scalia have a history of aligning himself with partisan parties who might have an interest in current or future cases in front of the Court?  A certain duck hunting excursion in 2004 with former Vice President Dick Cheney comes to mind.   Will the Tea Party Caucus members suggest to Scalia that the Health Care reform legislation is unconstitutional, knowing that this contentious issue will likely reach the Supreme Court?  Unfortunately, we won’t know because this meeting will be private and behind closed doors.  Do we really want members of  the Judiciary meeting in private sessions with members of any one political party?  Wouldn’t a bipartisan meeting or lecture be more appropriate?  At least one former member of the Bush administration seems to think so. 

Professor Richard Painter, the former Chief Ethics Lawyer for President George W. Bush and law professor at the University of Minnesota, seems to think that Scalia is stepping out-of-bounds.  “The question is whether Justices should also meet with Members of Congress behind closed doors in business meetings intended for discussion of the work of the judiciary.  I think not. Ex-parte communications with a Justice about pending cases or issues to be decided in pending cases are a problem if coming from any source.  Ex-parte communications are a serious problem if coming from the executive or legislative branch of government.  An independent judiciary should make up its mind about cases free of pressure from Congress or the President.  I recall that several of the Justices were offended that the President would criticize a past holding of the Court in a televised State of the Union address before Congress.  They felt that the independence of the judiciary was being undermined by this public chastisement.   Why then would any Justice voluntarily go up to the Hill to hear what Members of Congress have to say in a closed-door meeting about their judicial philosophy or anything else relevant to their work on the Court ,and possibly to hear views on particular cases?   Or is judicial independence yet another concept that turns on political perspective rather than principle?”   What do you think?


  1. A Caucus of a party generally meets with out the other side being allowed to hear what they have to say……

    I think this is unethical as and maybe Articles of Impeachment should be referred to the House……

  2. Bdaman: “Oops” by Britney; I’ll bookend that with my favorite version:


  3. rafflaw,

    Thanks for making me laugh. That’s exactly the kind of thing that I would do! As a friend of mine used to say, “It makes me like you all the more.” 🙂

    The Bachmann thing scares me too… Highly incongruous, isn’t it? And I have to wonder if there’s more to it than meets the eye.

    I’m worried for our country. And, sometimes, as the day winds down, I feel like I’m fighting a losing battle. Who was it that said, “…but we live to fight another day”?

  4. rafflaw,

    You should be able to delete the posts by going to “Comments” from the dashboard, then click on approved at the top. Then just find the recent comments by JT and click “trash”.

  5. I did it again. I think I am going to quit for the night! Thanks Former Fed and blouise. The 9:09 posting was not by Prof. Turley, but by rafflaw! Yikes.

  6. Rafflaw,

    Can you easily delete that post and then repost it later under your name? Such errors are very understandable.

  7. rafflaw,

    Hey … you’re allowed … I think it was mespo who did that once during his break-in period. See, you’re in the best of company.

  8. Michelle Bachmann as head of the House Intelligence Committee

    The head moron at the head of an oxymoron.

  9. I want to let everyone know that while I was logged in to Prof. Turley’s site to post my next article, I tried to respond on my earlier site and it incorrectly put Prof. Turley’s name and picture to my response. The response at 8:48pm was not by Professor Turley, but by rafflaw. I apologize for that error. Next time I will wait to respond until I have logged out from Prof. Turley’s site.

  10. Well, it looks like Bob hit the high spots in response, but really Mike Spindell summed it up nicely (and with stunning brevity coming from Mike ;)) when he said, “Ethics and Scalia don’t belong in the same sentence.”

    The man is a disgrace to the bar, the Supreme Court, the Constitution and the Declaration of Independence. Not to mention humanity. If every man was like Scalia, there would be only lesbians and a bunch of frustrated angry evil men left on this planet.

  11. BBB,The whole point that I am trying to make concerning Justice Scalia is that we cannot rely on his or any other judge’s “word” on the matter. He needs to stay out of situations that may give a rise to the appearance of impropriety. It is a high standard, but he is a Supreme Court Justice. Frankly, it doesn’t matter if he was sued in his official capacity or personally. The VP can’t leave his business or personal matters at home when he goes Duck Hunting with a Judge that may be hearing his case. Nor can the Judge or Justice leave his bench duties at home when he vacations with a litigant in front of him. As Painter suggests in your quote, Scalia should have learned from the Duck Hunting fiasco, but obviously he hasn’t.

  12. rafflaw,

    I’m happy to see that you brought up Justice Scalia’s duck hunting trip with Dick Cheney. Here’s what Richard Painter recently had to say about that;

    “The argument is that Justice Scalia was required to recuse because of: (i) his close friendship with Vice President Cheney, who was named as a party in the case, (ii) his acceptance of something of value — a duck hunting trip — from the Vice President, and (iii) the potential for ex parte communications with the Vice President.

    I don’t buy it. In this case the Vice President was sued in his official capacity. Indeed, whether or not they are actually named as defendants in cases, the President and the Vice President take official actions that are with regularity challenged in the courts. A personal friendship with either the President or the Vice President does not require recusal whenever the Administration’s actions are challenged in court and it makes even less sense to change the rule simply becuase the plaintiff names the President or Vice President in the complaint. Such a rule would allow litigants to choose which judges and justices will decide their cases by deciding which government officials to actually name in their complaint.

    As for something of value, a personal capacity duck hunting trip (whatever it is worth if anything) is not something of value from the litigant being sued in his official capacity. We all know what Justice Scalia values most — his seat on the Court — and he got that from President Reagan. He never had to recuse himself from cases where the Reagan Administration’s actions were challenged in court. Would we really change the result if President Reagan had invted him for a weekend at the ranch after putting him on the Court. I don’t think so.

    Ex-parte communicaions about the case are the crux of the matter. Either ex-parte communications about the case took place or they did not. If they did, Justice Scalia probably was required to recuse. If not, he should not have recused. Justice Scalia says that there were no ex-parte communications, and if this is true, he was right not to recuse.

    The fact that the public may think that Justice Scalia is lying and that there were ex-parte communications is the reason I said that trip was not a smart thing to do. It is not a reason to recuse if he is telling the truth.

    Justice Scalia should have learned from that incident to avoid yet one more situation where someone could say that there are ex-parte communications. The situation here is worse because the entire point of the Tea Party meeting is to talk about constitutional law. No ducks — real or pretend.

    One bright spot: at least Justice Scalia can go up to the Hill in a suit and tie rather than the bright orange vest that I would have highly recommended for hunting with the Vice President.”

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