« Booker basics and more commentary | Main | Understanding and appreciating Judge Cassell's Wilson opinion »

January 15, 2005

Justice Breyer sought recusal advice

Tony Mauro is reporting in this first-rate law.com article that "Supreme Court Justice Stephen Breyer, author of the key opinion in last week's sentencing guidelines decision, consulted a legal ethics expert last summer before deciding that he could rule on the issue."  The article provides all the details and highlights that Justice Breyer sought advice from Prof. Gillers on this issue in early July, well before the acting Solicitor General had moved for cert. 

Kudos to Justice Breyer for spotting this ethics issue right away and for seeking the advice of others as he thought through this matter (and also for coming to the right conclusion, in my opinion, about whether he should be involved in Booker).

January 15, 2005 at 10:47 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Justice Breyer sought recusal advice:

» Breyer's Ethics Ask from Law Dork
Although Prof. Douglas Berman has been all over the issues with Justice Ginsburg's "silent switch" that shook United States v. Booker, Tony Mauro has discovered that Justice Stephen Breyer sought advice on whether he should participate in the decision ... [Read More]

Tracked on Jan 19, 2005 1:37:47 AM

» Breyer's Ethics Ask from Law Dork
Although Prof. Douglas Berman has been all over the issues with Justice Ginsburg's "silent switch" that shook United States v. Booker, Tony Mauro has discovered that Justice Stephen Breyer sought advice on whether he should participate in the decision ... [Read More]

Tracked on Jun 10, 2005 12:00:22 AM


If Justice Breyer had ethics issues as a past USSC member - will Commissioner O'Neil have any ethical issues as new leader of the Senate Judiciary Committee?

Posted by: Ken Ewing | Jan 15, 2005 3:35:30 PM

With all due respect, Professor Berman, I cannot agree with your extension of "kudos" to Justice Breyer for his decision not to recuse himself in Blakely and its progeny. Tony Mauro's piece quotes Stephen Gillers as having informally advised Breyer, "there is no longer any reasonable basis to question your impartiality on the issue of the validity of the guidelines."

Permit me to suggest there was every reason to question Justice Breyer's impartiality in this matter. Had not Justice Breyer acted, not merely as an "advocate" as Gillers claimed, but as one of the "chief architects" of the federal guidelines regime? And did he not serve for some years as a US Sentencing Commissioner? Isn't it therefore reasonable to believe that Breyer would not only harbor a rooted prejudice in favor of preserving his "architectural monument," along with its structural supports like the Sentencing Commission, but that he would have approached the case having already decided in his own mind the outcome that he would seek to vindicate?

And doesn't such an tendentious mindset constitute the very antithesis of impartiality? It seems to me this was rather like having Dr. Frankenstein sit in judgment upon the fate of his own monster. You will forgive, I hope, this clearly defense-oriented analogy. However, my point is that such circumstances cannot be expected to invite dispassionate, detached, disinterested, open-minded, in a word, impartial, adjudication. In the end, I cannot help but feel that the American public, and not least that sizeable cohort of interested defendants, has been ill-served by their highest court.

And if you have any doubts at all about Justice Breyer's improperly protective predisposition toward the guidelines at the outset of these cases, simply consider the so-called remedy he positioned himself to fashion. Ultimately he managed not to touch so much as a hair upon the head of his beloved creature, the guidelines, choosing instead to perform cosmetic surgery on the innocuous provisions of the SRA.

I cannot even bring myself to admire Breyer's ingenuity in having conjured up a subtle method for effecting the result that he had antecedently determined to defend. I have elsewhere said that I consider the Breyer remedy to represent the absolute nadir of American jurisprudence. I come to this conclusion because it appears to make it constitutional for a judge to base his or her "advisory" guideline calculation on facts which have not been found by a jury or admitted by a defendant. Since I anticipate that most judges, in most cases, will find that this advisory guideline calculation reflects the most reasonable sentencing option, and sentence accordingly, then the consequence of the Breyer remedy will be to utterly negate the constitutional rule announced in Blakely and reaffirmed in the majority opinion of Justice Stevens in Booker.

Should this prove to be the case, it would be difficult to conceive of a more intellectually dishonest device than the Breyer remedy to circumvent the jury trial guarantee of the Sixth Amendment. It will have worked nothing short of a swindle of constitutional dimensions.

The legal community, in particular the defense bar, would then be wise to vigorously decry the employment of such a cynical and sophistical strategy at the expense of a cherished constitutional right.

Posted by: Tom Belfatto, Defense Attorney, Moorestown, NJ | Jan 16, 2005 8:15:04 PM

Tom, these are powerful points but they go more to the substance of your disagreement with Breyer's view on the merits (which was fully shared by 3 other Justices and a critical fourth when it came to the remedy). Moreover, I principally meant to extend kudos to Breyer for spotting the ethics issue and seeking expert advice, although my (non-expert) instinct is that he made the right call.

You are, of course, that Justice Breyer's prior involvement in the creation of the FSG gave him a unique perspective. But I am uncomfortable with saying that experience makes him fundamentally biased to the point where recusal was required. (Among other consequences, this would suggest that every judge who ever served on the sentencing commission would be ethically barred from adjudicating any constitutional challenges to the system.)

In the end, though the ethical question is an interesting subject for debate, it makes sense for all of us to focus now on the merits of the decision and what it will come to mean.

Posted by: Doug B. | Jan 17, 2005 1:45:47 AM

This was written in Freedman & Smith, Understanding Lawyers' Ethics (3rd ed., 2004)(footnotes omitted):

§9.09 [2] – Disqualification Based on a Judge’s PriorCommitment to Issues or Causes

A serious practical problem relating to judicial disqualification is a judge’s commitment to issues or causes before becoming a judge. For example, under a literal reading of §455(a), one might well conclude that Justice Thurgood Marshall should have recused himself from all cases involving civil rights, that Justice Ruth Bader Ginsburg should not sit in cases involving women’s rights, and that Ninth Circuit Judge John T. Noonan, Jr., who wrote books and articles opposing abortion before becoming a judge, would have to recuse himself from cases involving abortion rights. Surely a reasonable person might question the ability of former partisans, with strong ideological commitments, to be neutral and detached in such cases.
As Chief Justice Rehnquist observed in his Memorandum in Laird v. Tatum, however, anyone qualified to be a judge will inevitably have expressed views on issues of law and public policy prior to becoming a judge. The fact that a justice has expressed opinions in his previous career could not be a disqualifying factor, however, because “[p]roof that a justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional law would be evidence of lack of qualification, not lack of bias.” Moreover, the views expressed by judicial candidates on issues of law and public policy can be critical considerations in the candidates’ selection for the bench. It makes little sense, therefore, to disqualify a judge for the very kind of experience and viewpoint that qualified him in the first place. Also, if a judge could not decide an issue on which he had previously expressed an opinion in a book or a law review article, an authority like Professor Laurence Tribe could not be a Supreme Court justice, because there are few issues of constitutional importance on which he has not expressed opinions in highly regarded scholarly works.
Indeed, Marshall and Ginsburg were made justices partly because of their long-time experience advancing civil rights, and Noonan was made a judge partly because of his impressive scholarship on important issues of public concern, including abortion. As one would expect, therefore, the drafters of the ABA’s Model Code (on which §455 is patterned) did not intend to require recusal of a judge on the ground of “a fixed belief about the law.” This means, then, that a line has to be drawn that has not been expressed in the text of §455(a) and that has not been adequately articulated by any case or commentary.
Our proposal is that a judge’s recusal not be required where the judge has developed a point of view based on the judge’s life experience. This means that Justice Marshall properly sat in civil rights cases, that Justice Ginsburg can properly decide cases involving women’s rights, and that Judge Noonan can properly sit in abortion cases. These are issues on which these judges’ prior involvement presumably commended them to the President and the Senate in nominating and confirming them as judges. In addition, as a practical matter, these issues, and other life-experience issues like them, represent major categories of cases coming before the federal courts.
On the other hand, we propose that recusal be required in cases in which the issue is the constitutional or statutory validity – and, therefore, the continued existence – of a judge’s own work product, e.g., a statute or regulation that the judge was instrumental in drafting and/or getting enacted. In a case like that, the judge can be expected to have an especially strong proprietary interest in the viability of the particular subject matter of the dispute. In addition, unlike the generality of life-experience issues, this category of cases is small enough to be manageable.
A useful illustration is the case of Griffin Bell. During the late 1950s, when the South was in the throes of court-ordered desegregation, responsible leadership and wise counsel were desperately needed. Griffin Bell responded by taking leave from his law firm to serve as volunteer chief of staff to Governor Vandiver of Georgia. As reported by The Atlanta Constitution, however, Bell’s job was not to further orderly compliance with the Supreme Court’s desegregation decree, but to lead in the effort in “reinforcing Georgia’s anti-integration armor.”
Part of the strategy that Bell helped to devise was a plan that imposed discriminatory standards on African-American students who tried to transfer to white schools. For example, African-American students were required to pass a special “personality interview” and had to achieve higher scores than white students on a standardized test. Bell’s racist school plan was successful for years. Ultimately, however, it was challenged in the federal courts. When the case reached the Fifth Circuit, the court split 2-1. The majority opinion, upholding Bell’s school plan, was written by Judge Griffin Bell.
Presumably, in the minds of those who promoted Bell’s judgeship, his segregationist background was a qualifying factor. In any event, like Marshall’s and Ginsburg’s backgrounds in civil rights and Noonan’s in anti-abortion scholarship, Bell’s background represented knowledge and a commitment on an important issue of public policy founded on the judge’s life experience. Accordingly, just as Marshall and Ginsburg could properly sit in cases involving civil rights, and Noonan could properly sit in cases involving abortion, Bell could properly have decided cases involving segregation. Indeed, he could properly have brought his expertise to bear in a case involving the interpretation of his own segregationist school plan.
What Bell should not have done, however, was pass on the constitutional validity of the very plan that he had played a leading role in devising. Maintaining the legality and continued existence of his own particular work product involved a high degree of personal identification with the subject matter of the dispute, going beyond bringing experience, knowledge, and ideology to an important issue of public policy.
Another useful illustration is Justice Stephen Breyer’s major role, before he joined the Court, in drafting and in persuading Congress to establish the United States Sentencing Commission to draft sentencing guidelines. The validity of that legislation was later attacked on constitutional grounds. If Breyer had been on the Court when that attack was made, it would have been improper for him to have participated in determining the viability of the work product in which he had invested so much time, judgment, and commitment. On the other hand, Breyer has properly contributed his expertise to interpreting the meaning of the statute; this includes determining the validity of a guideline, promulgated by the Commission, that was challenged as inconsistent with the language of the statute.
In sum, here is the implied exception that we would suggest to §455(a) regarding prior commitments to issues or causes. When a judge has experience regarding an important issue in a case, recusal is not required, even though the judge may have expressed strong views on the issues. On the other hand, when the issue in the case is the validity and viability of the judge’s own particular work product, recusal is required. We are not aware of any authority drawing the line this way, but as a practical matter, a line has to be drawn, and this one seems to be both rational and principled.

Postscript: Breyer went to Gillers because he knew from past experience (some of which is related in ULE) that Gillers would support his participation. Gillers' letter is superficial and conclusory, containing virtually no analysis at all. Linda Greenhouse's report on Booker in the NYT called the result a "personal triumph" for Breyer, which seems to me to show (in the language of the Federal Disqualification Statute) that Breyer's impartiality "might" reasonably be "questioned."

Posted by: Monroe Freedman | Feb 2, 2005 8:26:06 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB