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tx 3 putt

By tx 3 putt
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Brisketexan
Brisketexan

Some people and posts above see this for the incredibly dangerous thing it is.  See the whole forest, not just the tree.  Roe is built on the bedrock of the 14th amendment and the inherent right to pr

Ghost of LL
Ghost of LL

The whole episode is pretty bad for the Court.  The leak is embarrassing.  But the decision is catastrophic. You've got a 5-4 decision to get rid of a something that has been settled as a constit

sidis
sidis

in one of the many instances in which i debunked your oversimplified, unsupported bullshit and you simply never responded, i addressed your absolutist contention that religious are more charitable tha

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Sawbonz

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2 minutes ago, tx 3 putt said:

 

Who would’ve thought Harriett Miers would have been a better Justice than literally anyone?

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RPM

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On 5/23/2024 at 7:59 PM, Bullneck said:

A Skinny Bitch for all you fat beer drinking slobs (not "snobs" since it's impossible in my cultured opinion to be a snob about beer) is a Diet Coke and Vodka.  So Paris Hilton and I have that in common.  

Are you calling Bill Murray a Skinny Bitch?

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Nice Guy Eddie

Nice Guy Eddie 13509

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I’ve run into too many Martha Ann Alitos in my life. The world has done nothing but be good to them but they’re pissed off for no apparent reason. If the worst thing in your life is not having your political side win, life is still pretty damn good.

instead of flying flags because you’re upset that Biden won why not criticize your own side for running a horrible candidate, now for the 3rd time.

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Willfully Horn

Willfully Horn 8002

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Honestly think I am caught up, but the following recount of the neighborhood tensions was news to me. A “liberal young couple” in the Alito’s neighborhood had politically liberal signs in their yard. Alito’s wife would react at the sight of the couple’s car, once being near enough to supposedly spit at their car. This “liberal young couple,” while taking out their trash intersected the Alito’s, who were out for a walk. Words were exchanged. The young wife admits she used an expletive in response, and claims to have said: “How dare you behave this way. You’ve been harassing us, over signs. You represent the highest court in the land. Shame on you.”

Apparently, the young husband sought the help of the police to deal with what he labeled “harassment.”

There’s other details, such as the Alito’s knowing the young couple by name, and Mrs Alito interpreting their yard signs as fascism.


https://www.rawstory.com/alito-stop-the-steal-2668393895/

 

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HenryJames

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Emerging Portrait of Judge in Trump Documents Case: Prepared, Prickly and Slow

Spoiler

Judge Aileen Cannon’s handling of court hearings offers insights into how the case accusing Donald Trump of illegally retaining classified material has become bogged down in unresolved issues.

May 29, 2024, 5:03 a.m. ET
 

Judge Aileen M. Cannon, wearing a black robe and smiling in a portrait. Judge Aileen M. Cannon rarely issues rulings that explain her thinking in a way that might reveal her legal influences or any guiding philosophy.Southern District of Florida

Alan Feuer

By Alan Feuer

Alan Feuer has regularly attended the proceedings in Judge Aileen M. Cannon’s courtroom in Fort Pierce, Fla.

A few months ago, a top prosecutor on former President Donald J. Trump’s classified documents case stood up in court and told Judge Aileen M. Cannon that he was concerned about the pace of the proceeding, gingerly expressing his desire to keep the matter “moving along.”

Almost instantly, Judge Cannon got defensive.

“I can assure you that in the background there is a great deal of judicial work going on,” she snapped. “So while it may not appear on the surface that anything is happening, there is a ton of work being done.”

In some sense, Judge Cannon had a point. Much of what judges do unfolds out of sight in the sanctity of their chambers.

But at seven public hearings over more than 10 months, Judge Cannon has left an increasingly detailed record of her decision-making skills and judicial temperament.

The portrait that has emerged so far is that of an industrious but inexperienced and often insecure judge whose reluctance to rule decisively even on minor matters has permitted one of the country’s most important criminal cases to become bogged down in a logjam of unresolved issues.

She rarely issues rulings that explain her thinking in a way that might reveal her legal influences or any guiding philosophy. And that has made the hearings, which have taken place in Federal District Court in Fort Pierce, Fla., all the more important in assessing her management of the case.

Regardless of her motives, Judge Cannon has effectively imperiled the future of a criminal prosecution that once seemed the most straightforward of the four Mr. Trump is facing.

She has largely accomplished this by granting a serious hearing to almost every issue — no matter how far-fetched — that Mr. Trump’s lawyers have raised, playing directly into the former president’s strategy of delaying the case from reaching trial.

It appears increasingly likely that the documents case will not go to a jury before Election Day, and that the only trial that Mr. Trump will face this year will be the one now ending in Manhattan, where jurors are expected to begin deliberating on Wednesday over whether he falsified business records in connection with hush money payments to a porn star.

Still, the next few weeks will bring Judge Cannon’s handling of the case in Florida into even sharper focus.

She may soon rule on a request by Jack Smith, the special counsel overseeing the two federal prosecutions of the former president, to bar Mr. Trump from making public statements that could endanger federal agents working on the documents case. That move, which the judge denied this week on procedural grounds, came in response to the former president’s baseless assertion that the F.B.I. was authorized to use deadly force against him during the search two years ago of Mar-a-Lago, his private club and residence in Florida.

After a hearing in June, Judge Cannon will also have to make a significant decision on whether to give Mr. Trump’s lawyers access to communications between Mr. Smith’s team and top national security officials. The lawyers made that request hoping to bolster their contention that the so-called deep state colluded with the Biden administration to bring the charges.

A former federal prosecutor, Judge Cannon graduated from Duke University and the University of Michigan’s law school, where she joined the conservative Federalist Society. She was nominated to the federal bench by Mr. Trump during his final months in office and was confirmed by the Senate just days after he was declared the loser of the 2020 election.

She was already under scrutiny when she got the classified documents case last June because of a decision she made well before the indictment was filed. That ruling, which shut down the investigation into Mr. Trump until an independent arbiter sorted through reams of materials seized from Mar-a-Lago, was so legally dubious that the appeals court sitting over her reversed it in unusually scathing terms.

Since then, Judge Cannon has shown little of her human side in court, taking a businesslike approach to the proceedings, which always begin the same way.

Invariably entering her courtroom on time, she first admonishes those in the gallery not to use electronic devices and reminds them of her rule forbidding getting up while a hearing is in progress. She then lays out the issues at hand and recounts the documents she has received that will inform the conversation.

Even though she has been on the bench for only four years and has limited experience handling criminal cases, it is often clear that Judge Cannon has done her homework.

In mid-March, for instance, she was discussing the key elements of the Espionage Act with Emil Bove, one of Mr. Trump’s lawyers and an expert on classified information cases. At one point, she pushed back at Mr. Bove’s contention that a section of the act requiring “national defense information” to be present in any documents charged in an indictment was so vaguely written that it was essentially unenforceable.

“There has been a fair amount of litigation, I think, on the defense information prong,” Judge Cannon said. “So it would be hard to say, based on the current state of decisional authority, that that prong, in and of itself, is unconstitutionally vague.”

Even though it meant that he had lost the point, Mr. Bove had to agree.

“I can’t fight with the way that Your Honor phrased that,” he said.

That exchange, however, was a far cry from one that occurred last week when Judge Cannon was debating with Jay Bratt, one of the prosecutors, about a common theory of legal liability called the Pinkerton rule. The rule holds that all members of a conspiracy can be held accountable for any crimes committed by their co-conspirators.

Mr. Bratt said the rule would likely apply to Mr. Trump’s dealings with his two co-defendants, Walt Nauta and Carlos De Oliveira, employees of Mar-a-Lago who have been accused of conspiring with the former president to obstruct the government’s repeated efforts to retrieve the classified materials.

Judge Cannon seemed a bit perplexed and asked Mr. Bratt what authority he intended to rely on in applying the Pinkerton rule. Mr. Bratt seemed almost sheepish in having to lay things out for her so simply.

“So the authority is Pinkerton,” he said, and launched into a quick explanation.

One of Judge Cannon’s most enduring habits is her tendency to ask the same question several times. It is never quite clear if she does not understand the answers she is receiving or is trying to push back against them.

At last week’s hearing, she did this to Stanley Woodward Jr., Mr. Nauta’s lawyer, as she considered his request to order prosecutors to provide him with internal communications that could help support his claims that the case against his client had been brought vindictively.

The communications Mr. Woodward was looking for concerned a meeting he attended at the Justice Department nearly two years ago where, he claims, Mr. Bratt threatened to derail a judgeship he had applied for if he did not prevail on Mr. Nauta to cooperate against Mr. Trump.

When Judge Cannon asked Mr. Woodward what he actually wanted from the government, his answer seemed simple enough: any messages exchanged by prosecutors that mentioned his name. The judge then asked a second time, telling Mr. Woodward to give it to her “slowly.”

But even after that, it seemed that she was still a bit confused.

“All right,” she said, this time referring to notes she had taken. “So I understand your request. It’s, quote, ‘All documents, communications concerning Mr. Woodward.’”

Something similar happened moments later when Judge Cannon turned to David Harbach, one of the prosecutors, to discuss Mr. Woodward’s request.

Mr. Harbach had just spent the better part of five minutes telling the judge that Mr. Woodward’s claims of misconduct were a “fantasy” and that, under the law, he was not entitled to rummage around in the government’s private messages.

But Judge Cannon seemed to miss his point, asking Mr. Harbach if he was suggesting that prosecutors did not have any of the messages that Mr. Woodward wanted. No, he told her, explaining again that Mr. Woodward had failed to present any evidence that would even merit turning over what he wanted.

“So I guess what you are saying is you’re not sure?” she asked.

No, Mr. Harbach said for a third time, once more trying to explain that Mr. Woodward’s description of the meeting in August 2022 was entirely false and that the normal legal threshold for handing over private communications had simply not been reached.

“I know you disagree with the factual recitation of the August meeting,” Judge Cannon said. “But would that provide a basis for the discovery request?”

Now clearly frustrated, Mr. Harbach said as plainly as he could that Mr. Woodward’s request had no basis in either fact or law.

“This is what I’m trying to tell you,” he all but shouted at the judge.

That discussion ultimately ended with Judge Cannon telling Mr. Harbach he needed to “calm down.” It was emblematic of the dwindling reserves of patience between Judge Canon and the prosecutors.

In October, for example, Judge Cannon lashed out at Mr. Harbach at a different hearing about whether Mr. Woodward had a conflict of interest in the case. The question revolved around the fact that Mr. Woodward was representing Mr. Nauta, one of the defendants, and had formerly represented a man likely to testify for the government at trial.

When Mr. Harbach expressed concern that Mr. Woodward might have to cross-examine a former client — a situation that could easily lead to a conflict — Judge Cannon chided him for having failed to mention that possibility in his written filings submitted before the hearing.

Citing Mr. Harbach’s “last-minute introduction of an issue that was not briefed,” she abruptly ended the hearing and assailed the prosecution for “wasting the court’s time.”

But she acted very differently at the hearing last week when Mr. Woodward made several arguments about his claims of vindictive prosecution that had never appeared in any of his filings. Judge Cannon hardly seemed to notice that he had wandered from his script, let alone rebuke him.

There is one subject the defense loves to talk about that always seems to set Judge Cannon on edge: Mr. Trump’s presidential campaign. While she has allowed his lawyers leeway in using their briefings to make political arguments, she has repeatedly shut them down when they have tried to raise the subject of politics in court.

In early March, Mr. Bove began an argument on a highly technical legal issue by complaining that Mr. Trump should not have been in court at all that day, but instead should have been out campaigning.

Apparently annoyed, Judge Cannon cut him off.

“OK, OK,” she said. “Can we talk about the actual legal issues?”

Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump.  More about Alan Feuer

See more on: Donald Trump

 

9 hours ago, Willfully Horn said:

Honestly think I am caught up, but the following recount of the neighborhood tensions was news to me. A “liberal young couple” in the Alito’s neighborhood had politically liberal signs in their yard. Alito’s wife would react at the sight of the couple’s car, once being near enough to supposedly spit at their car. This “liberal young couple,” while taking out their trash intersected the Alito’s, who were out for a walk. Words were exchanged. The young wife admits she used an expletive in response, and claims to have said: “How dare you behave this way. You’ve been harassing us, over signs. You represent the highest court in the land. Shame on you.”

Apparently, the young husband sought the help of the police to deal with what he labeled “harassment.”

There’s other details, such as the Alito’s knowing the young couple by name, and Mrs Alito interpreting their yard signs as fascism.


https://www.rawstory.com/alito-stop-the-steal-2668393895/

 

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chainsaw

chainsaw 9857

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Okay maybe he would lie about something easily verifiable like the timeline of a spat with his neighbors, but he would never lie about the facts of a case he's deciding or the evidence of the Founding Father's original intent.

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Dnaguy

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1 hour ago, 4th&Five said:

Shocking GIF by The Dungeon Run

Quote

He added: “As I said in reference to the other flag event, my wife is an independently minded private citizen. She makes her own decisions, and I honor her right to do so.”

…

“My wife is a private citizen, and she possesses the same First Amendment rights as every other American,” the justice wrote. “She makes her own decisions, and I have always respected her right to do so.”

“She has made many sacrifices to accommodate my service on the Supreme Court,” he wrote, “including the insult of having to endure numerous, loud, obscene and personally insulting protests in front of our home that continue to this day and now threaten to escalate.”

Sam Alito, feminist whose wife is actually the victim here when you consider all the verbal abuse she endured through the years.

I’m now 100% convinced of this being an AI  simulation that’s become an AI hallucination 

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Fudge Nuggets

Fudge Nuggets 19189

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2 minutes ago, tx 3 putt said:

Thoughts ?

 

The tell was when the leak first hit, the GQP was all up in arms hitting every TV camera they could find stating they were going to fry anyone and everyone associated with the leak.

Then two days later they went completely silent.  I mean, at least that's when I figured either Alito or Uncle Ruckus (or both) was responsible.

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wildcat09

wildcat09 29346

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I'd say the release of the official opinion made it pretty clear Alito was the leaker, given that he was the author and there were no substantive changes to the version of the opinion that had leaked. 

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Fudge Nuggets

Fudge Nuggets 19189

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Another thing I found weird way back in the day was Roberts came to the SCOTUS as the Chief Justice.  I figured they would promote one of the sitting justices and the new guy would be one of the normal justices at the start.  To me it always seemed like announcing your first round draft pick as team captain on day one.

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South Austin

South Austin 52453

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44 minutes ago, Fudge Nuggets said:

Another thing I found weird way back in the day was Roberts came to the SCOTUS as the Chief Justice.  I figured they would promote one of the sitting justices and the new guy would be one of the normal justices at the start.  To me it always seemed like announcing your first round draft pick as team captain on day one.

Burger and Warren joined the Court as CJ's.  Not sure about prior CJ's, but being nominated to the Court as Chief isn't a rarity.  

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Smax

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Sam Alito, feminist whose wife is actually the victim here when you consider all the verbal abuse she endured through the years.
I’m now 100% convinced of this being an AI  simulation that’s become an AI hallucination 
Odd how he doesn't believe that when it comes to women of this county and their reproductive systems
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bolverk

bolverk 29655

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8 hours ago, 4th&Five said:

Shocking GIF by The Dungeon Run

 

Jamie Raskin presents a compelling case that Alito and Thomas must recuse themselves. As we've seen, he's pretty tenacious, and I imagine he's going to be applying some pressure.

 

Jamie Raskin: How to Force Justices Alito and Thomas to Recuse Themselves in the Jan. 6 Cases

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.

It seems unfathomable that the two justices could get away with deciding for themselves whether they can be impartial in ruling on cases affecting Donald Trump’s liability for crimes he is accused of committing on Jan. 6. Justice Thomas’s wife, Ginni Thomas, was deeply involved in the Jan. 6 “stop the steal” movement. Above the Virginia home of Justice Alito and his wife, Martha-Ann Alito, flew an upside-down American flag — a strong political statement among the people who stormed the Capitol. Above the Alitos’ beach home in New Jersey flew another flag that has been adopted by groups opposed to President Biden.

Justices Alito and Thomas face a groundswell of appeals beseeching them not to participate in Trump v. United States, the case that will decide whether Mr. Trump enjoys absolute immunity from criminal prosecution, and Fischer v. United States, which will decide whether Jan. 6 insurrectionists — and Mr. Trump — can be charged under a statute that criminalizes “corruptly” obstructing an official proceeding. (Justice Alito said on Wednesday that he would not recuse himself from Jan. 6-related cases.)

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.

Of course, Justices Alito and Thomas could choose to recuse themselves — wouldn’t that be nice? But begging them to do the right thing misses a far more effective course of action.

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. The Constitution has come into play in several recent Supreme Court decisions striking down rulings by stubborn judges in lower courts whose political impartiality has been reasonably questioned but who threw caution to the wind to hear a case anyway. This statute requires potentially biased judges throughout the federal system to recuse themselves at the start of the process to avoid judicial unfairness and embarrassing controversies and reversals.

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.

In one key 5-to-3 Supreme Court case from 2016, Williams v. Pennsylvania, Justice Anthony Kennedy explained why judicial bias is a defect of constitutional magnitude and offered specific objective standards for identifying it. Significantly, Justices Alito and Thomas dissented from the majority’s ruling.

The case concerned the bias of the chief justice of Pennsylvania, who had been involved as a prosecutor on the state’s side in an appellate death penalty case that was before him. Justice Kennedy found that the judge’s refusal to recuse himself when asked to do so violated due process. Justice Kennedy’s authoritative opinion on recusal illuminates three critical aspects of the current controversy.

First, Justice Kennedy found that the standard for recusal must be objective because it is impossible to rely on the affected judge’s introspection and subjective interpretations. The court’s objective standard requires recusal when the likelihood of bias on the part of the judge “is too high to be constitutionally tolerable,” citing an earlier case. “This objective risk of bias,” according to Justice Kennedy, “is reflected in the due process maxim that ‘no man can be a judge in his own case.’” A judge or justice can be convinced of his or her own impartiality but also completely missing what other people are seeing.

Second, the Williams majority endorsed the American Bar Association’s Model Code of Judicial Conduct as an appropriate articulation of the Madisonian standard that “no man can be a judge in his own cause.” Model Code Rule 2.11 on judicial disqualification says that a judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” This includes, illustratively, cases in which the judge “has a personal bias or prejudice concerning a party,” a married judge knows that “the judge’s spouse” is “a person who has more than a de minimis interest that could be substantially affected by the proceeding” or the judge “has made a public statement, other than in a court proceeding, judicial decision or opinion, that commits or appears to commit the judge to reach a particular result.” These model code illustrations ring a lot of bells at this moment.

Third and most important, Justice Kennedy found for the court that the failure of an objectively biased judge to recuse him- or herself is not “harmless error” just because the biased judge’s vote is not apparently determinative in the vote of a panel of judges. A biased judge contaminates the proceeding not just by the casting and tabulation of his or her own vote but by participating in the body’s collective deliberations and affecting, even subtly, other judges’ perceptions of the case.
Justice Kennedy was emphatic on this point: “It does not matter whether the disqualified judge’s vote was necessary to the disposition of the case. The fact that the interested judge’s vote was not dispositive may mean only that the judge was successful in persuading most members of the court to accept his or her position — an outcome that does not lessen the unfairness to the affected party.”

Courts generally have found that any reasonable doubts about a judge’s partiality must be resolved in favor of recusal. A judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” While recognizing that the “challenged judge enjoys a margin of discretion,” the courts have repeatedly held that “doubts ordinarily ought to be resolved in favor of recusal.” After all, the reputation of the whole tribunal and public confidence in the judiciary are both on the line.

Judge David Tatel of the D.C. Circuit emphasized this fundamental principle in 2019 when his court issued a writ of mandamus to force recusal of a military judge who blithely ignored at least the appearance of a glaring conflict of interest. He stated: “Impartial adjudicators are the cornerstone of any system of justice worthy of the label. And because ‘deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges,’ jurists must avoid even the appearance of partiality.” He reminded us that to perform its high function in the best way, as Justice Felix Frankfurter stated, “justice must satisfy the appearance of justice.”

The Supreme Court has been especially disposed to favor recusal when partisan politics appear to be a prejudicial factor even when the judge’s impartiality has not been questioned. In Caperton v. A.T. Massey Coal Co., from 2009, the court held that a state supreme court justice was constitutionally disqualified from a case in which the president of a corporation appearing before him had helped to get him elected by spending $3 million promoting his campaign. The court, through Justice Kennedy, asked whether, quoting a 1975 decision, “under a realistic appraisal of psychological tendencies and human weakness,” the judge’s obvious political alignment with a party in a case “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”

The federal statute on disqualification, Section 455(b), also makes recusal analysis directly applicable to bias imputed to a spouse’s interest in the case. Ms. Thomas and Mrs. Alito (who, according to Justice Alito, is the one who put up the inverted flag outside their home) meet this standard. A judge must recuse him- or herself when a spouse “is known by the judge to have an interest in a case that could be substantially affected by the outcome of the proceeding.”
At his Senate confirmation hearing, Chief Justice Roberts assured America that “Judges are like umpires.”

But professional baseball would never allow an umpire to continue to officiate the World Series after learning that the pennant of one of the two teams competing was flying in the front yard of the umpire’s home. Nor would an umpire be allowed to call balls and strikes in a World Series game after the umpire’s wife tried to get the official score of a prior game in the series overthrown and canceled out to benefit the losing team. If judges are like umpires, then they should be treated like umpires, not team owners, team fans or players.

Justice Barrett has said she wants to convince people “that this court is not comprised of a bunch of partisan hacks.” Justice Alito himself declared the importance of judicial objectivity in his opinion for the majority in the Dobbs v. Jackson Women’s Health Organization decision overruling Roe v. Wade — a bit of self-praise that now rings especially hollow.

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.

 

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C-Man

C-Man 27188

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Jamie Raskin presents a compelling case that Alito and Thomas must recuse themselves. As we've seen, he's pretty tenacious, and I imagine he's going to be applying some pressure.
 
Jamie Raskin: How to Force Justices Alito and Thomas to Recuse Themselves in the Jan. 6 Cases
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.
It seems unfathomable that the two justices could get away with deciding for themselves whether they can be impartial in ruling on cases affecting Donald Trump’s liability for crimes he is accused of committing on Jan. 6. Justice Thomas’s wife, Ginni Thomas, was deeply involved in the Jan. 6 “stop the steal” movement. Above the Virginia home of Justice Alito and his wife, Martha-Ann Alito, flew an upside-down American flag — a strong political statement among the people who stormed the Capitol. Above the Alitos’ beach home in New Jersey flew another flag that has been adopted by groups opposed to President Biden.
Justices Alito and Thomas face a groundswell of appeals beseeching them not to participate in Trump v. United States, the case that will decide whether Mr. Trump enjoys absolute immunity from criminal prosecution, and Fischer v. United States, which will decide whether Jan. 6 insurrectionists — and Mr. Trump — can be charged under a statute that criminalizes “corruptly” obstructing an official proceeding. (Justice Alito said on Wednesday that he would not recuse himself from Jan. 6-related cases.)
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.
Of course, Justices Alito and Thomas could choose to recuse themselves — wouldn’t that be nice? But begging them to do the right thing misses a far more effective course of action.
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. The Constitution has come into play in several recent Supreme Court decisions striking down rulings by stubborn judges in lower courts whose political impartiality has been reasonably questioned but who threw caution to the wind to hear a case anyway. This statute requires potentially biased judges throughout the federal system to recuse themselves at the start of the process to avoid judicial unfairness and embarrassing controversies and reversals.
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.
In one key 5-to-3 Supreme Court case from 2016, Williams v. Pennsylvania, Justice Anthony Kennedy explained why judicial bias is a defect of constitutional magnitude and offered specific objective standards for identifying it. Significantly, Justices Alito and Thomas dissented from the majority’s ruling.
The case concerned the bias of the chief justice of Pennsylvania, who had been involved as a prosecutor on the state’s side in an appellate death penalty case that was before him. Justice Kennedy found that the judge’s refusal to recuse himself when asked to do so violated due process. Justice Kennedy’s authoritative opinion on recusal illuminates three critical aspects of the current controversy.
First, Justice Kennedy found that the standard for recusal must be objective because it is impossible to rely on the affected judge’s introspection and subjective interpretations. The court’s objective standard requires recusal when the likelihood of bias on the part of the judge “is too high to be constitutionally tolerable,” citing an earlier case. “This objective risk of bias,” according to Justice Kennedy, “is reflected in the due process maxim that ‘no man can be a judge in his own case.’” A judge or justice can be convinced of his or her own impartiality but also completely missing what other people are seeing.
Second, the Williams majority endorsed the American Bar Association’s Model Code of Judicial Conduct as an appropriate articulation of the Madisonian standard that “no man can be a judge in his own cause.” Model Code Rule 2.11 on judicial disqualification says that a judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” This includes, illustratively, cases in which the judge “has a personal bias or prejudice concerning a party,” a married judge knows that “the judge’s spouse” is “a person who has more than a de minimis interest that could be substantially affected by the proceeding” or the judge “has made a public statement, other than in a court proceeding, judicial decision or opinion, that commits or appears to commit the judge to reach a particular result.” These model code illustrations ring a lot of bells at this moment.
Third and most important, Justice Kennedy found for the court that the failure of an objectively biased judge to recuse him- or herself is not “harmless error” just because the biased judge’s vote is not apparently determinative in the vote of a panel of judges. A biased judge contaminates the proceeding not just by the casting and tabulation of his or her own vote but by participating in the body’s collective deliberations and affecting, even subtly, other judges’ perceptions of the case.
Justice Kennedy was emphatic on this point: “It does not matter whether the disqualified judge’s vote was necessary to the disposition of the case. The fact that the interested judge’s vote was not dispositive may mean only that the judge was successful in persuading most members of the court to accept his or her position — an outcome that does not lessen the unfairness to the affected party.”
Courts generally have found that any reasonable doubts about a judge’s partiality must be resolved in favor of recusal. A judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” While recognizing that the “challenged judge enjoys a margin of discretion,” the courts have repeatedly held that “doubts ordinarily ought to be resolved in favor of recusal.” After all, the reputation of the whole tribunal and public confidence in the judiciary are both on the line.
Judge David Tatel of the D.C. Circuit emphasized this fundamental principle in 2019 when his court issued a writ of mandamus to force recusal of a military judge who blithely ignored at least the appearance of a glaring conflict of interest. He stated: “Impartial adjudicators are the cornerstone of any system of justice worthy of the label. And because ‘deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges,’ jurists must avoid even the appearance of partiality.” He reminded us that to perform its high function in the best way, as Justice Felix Frankfurter stated, “justice must satisfy the appearance of justice.”
The Supreme Court has been especially disposed to favor recusal when partisan politics appear to be a prejudicial factor even when the judge’s impartiality has not been questioned. In Caperton v. A.T. Massey Coal Co., from 2009, the court held that a state supreme court justice was constitutionally disqualified from a case in which the president of a corporation appearing before him had helped to get him elected by spending $3 million promoting his campaign. The court, through Justice Kennedy, asked whether, quoting a 1975 decision, “under a realistic appraisal of psychological tendencies and human weakness,” the judge’s obvious political alignment with a party in a case “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”
The federal statute on disqualification, Section 455(b), also makes recusal analysis directly applicable to bias imputed to a spouse’s interest in the case. Ms. Thomas and Mrs. Alito (who, according to Justice Alito, is the one who put up the inverted flag outside their home) meet this standard. A judge must recuse him- or herself when a spouse “is known by the judge to have an interest in a case that could be substantially affected by the outcome of the proceeding.”
At his Senate confirmation hearing, Chief Justice Roberts assured America that “Judges are like umpires.”
But professional baseball would never allow an umpire to continue to officiate the World Series after learning that the pennant of one of the two teams competing was flying in the front yard of the umpire’s home. Nor would an umpire be allowed to call balls and strikes in a World Series game after the umpire’s wife tried to get the official score of a prior game in the series overthrown and canceled out to benefit the losing team. If judges are like umpires, then they should be treated like umpires, not team owners, team fans or players.
Justice Barrett has said she wants to convince people “that this court is not comprised of a bunch of partisan hacks.” Justice Alito himself declared the importance of judicial objectivity in his opinion for the majority in the Dobbs v. Jackson Women’s Health Organization decision overruling Roe v. Wade — a bit of self-praise that now rings especially hollow.
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.
 

You had me until Merrick Garland
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