Tag Archives: recusal

An Important Test For The Court

In the three-plus years that Donald Trump has occupied the Oval Office–I deliberately didn’t say “has been President” because in any rational sense, he has not fulfilled that function–longstanding norms of American governance have been turned upside down.

Nowhere have the deviations from expectations been more worrisome than in the courts.

For years, legal scholars have debated whether this or that issue should be settled through litigation or by electoral politics. But I am aware of no credible argument that the courts should be divested of their independence and turned into supine tools of the executive branch.

Our idiot President recently called upon Supreme Court justices who disagree with him to recuse themselves–displaying not only his trademark contempt for constitutional checks and balances, but his embarrassing ignorance of American constitutionalism. That contempt and ignorance would not ordinarily be worthy of note–every day, the insane tweets and verbal diarrhea bear ample witness to both–except for a case that is making its way to the Supreme Court.

A recent article by Nancy LeTourneau at Washington Monthly pointed to the disquieting reason for Trump’s unprecedented assault on the Supremes. She begins her analysis by pointing to a truly telling statistic:

Trump administration’s incompetence has led to an abysmal record in the courts. Whereas previous administrations prevailed in the courts 80 percent of the time, this president has failed in over 90 percent of the cases his administration has argued.

As she notes, the Trump administration’s response to these failures has been to appeal directly to the Supreme Court–to ask the Court  to expedite emergency relief from the injunctions of the lower courts. Le Tourneau quotes one legal scholar to the effect that Trump has gone to the Supreme Court with such a request 24 times in less than three years– compared to a total of eight such requests during the 16 years of the George W. Bush and Obama administration’s combined.

Trump has no understanding of the legitimacy concerns raised by such petitions, of course. He actually believes that any criticism of him or his administration should be grounds for recusal, criticism and vilification. And he has other concerns as well.

The reason Trump is on the attack against liberal Supreme Court justices probably has more to do with a case that is being made against Justice Clarence Thomas. As we’ve seen, the president is in the midst of a purge of federal employees who don’t demonstrate enough loyalty to him. Jonathan Swan reported that Ginni Thomas—the wife of Clarence Thomas—has been deeply involved in lobbying on behalf of a purge, providing the administration with lists of who needs to go as well as potential replacements.

In response, there have been calls for Thomas to recuse himself on matters related to Trump and his administration.  Trump’s call for Sotomayor and Ginsberg to recuse themselves is not only a way to further politicize the Supreme Court; it also provides his media enablers with a distraction from the issues surrounding Thomas and the ability to pretend that both sides do it.

All of these issues have prompted Trump’s defensive and unPresidential behavior. But even more significant is a case  that could require him to release his tax returns.

From everything we’ve seen, that is the hill that this president is prepared to defend at all costs. And according to CNN, the latest dissent issued by Sotomayor could indicate that tensions are rising as the justices consider these major cases.

Here, then, is a critical test of the Court’s independence. Will Trump’s appointees behave like the grateful tools he clearly believes they are? Will they demonstrate allegiance to Trump, or to the Constitution?

The answer to that question will tell us whether we retain a system based–however insecurely–on the rule of law.


I’m as Ethical as Scalia is NOT a Persuasive Argument

A couple of days ago, the Sierra Club, Citizens Action Coalition, Spencer County Citizens for Quality of Life and Save the Valley [update: the organization was Valley Watch, not Save the Valley] filed a petition asking Indiana Supreme Court Justice Mark Massa to recuse himself from hearing a case that will determine the viability of the controversial Rockport coal gasification facility. (I’ve written before about this boondoggle, birthed by political insiders and totally contrary to the free market principles to which the Daniels Administration paid so much verbal homage.)

Not even 20 hours after the petition was filed, Massa issued a ruling denying it. Clearly, the ruling had been written well beforehand–the lawyers who crafted the brief could have saved their (written) breath.

The argument for recusal rested on the long and intimate relationship between Massa and Mark Lubbers, whose personal fortunes are closely tied to the results of the lawsuit, and upon Massa’s friendship with and service to then-governor Mitch Daniels, who rammed the deal through over the qualms of both Republican and Democratic legislators. As columnist Charles Pierce wrote yesterday in his Esquire blog,Massa couldn’t be more tied into the people who want to build the plant if he came to work every morning in one of those NASCAR firesuits festooned with logos.”

Massa’s ruling relied heavily on Cheney v. United States District Court, the infamous case in which Justice Scalia refused to recuse himself from a pending case despite the fact that he had gone duck hunting with the Vice-President–a named party— while the case was pending. Massa neglected to note that the Indiana Supreme Court, unlike the US Supreme Court, is governed by one of those pesky codes of ethics. (Can we spell “appearance of impropriety”?)

At least he didn’t defend himself by pointing out that Clarence Thomas sits on cases in which his wife has an interest, while he and Lubbers are just best buds. (Actually, relying on Scalia or Thomas for ethical guidance makes me think of that old adage about fish rotting from the head. But I digress.)

In a particularly disingenuous passage, Judge Massa wrote:

“I have a friend who works for General Motors; must I recuse if GM is a party to a case before our court?” he wrote. “All of us on this Court have many friends who are lawyers, some of whom appear before us, including several to whom I am closer and see more regularly than Mr. Lubbers. If mere friendship with these lawyers were enough to trigger disqualification, my colleagues and I would rarely sit as an intact court of five.”

Well Judge, if you had a friend who worked for General Motors, that would be a lot different than having a friend whose continued, highly lucrative employment depends upon a favorable verdict– a friend who got you your first political job 30 years ago, a friend with whom you have subsequently shared many meals and social occasions, a friend who was one of the very few invitees asked to speak at the robing ceremony when you were sworn in as Judge.

I’m disappointed, but not surprised. This is the man who, as a candidate for Marion County Prosecutor, ran an ad asserting that his opponent was unfit for the office because in his private practice he had represented a criminal defendant. (I know several Republican lawyers who had supported Massa until that ad ran, but based on its intellectual dishonesty, instead voted for Terry Curry.)

Massa evidently couldn’t see an appearance of impropriety if it bit him.