Wednesday, October 22, 2003


Matthew Franck has an excellent article on the recusal issue:
[S]uppose we are as punctilious as possible about all this. Justice Scalia is already amply on record about the pledge and 'under God,' and in much more comprehensive ways than anything he said in Fredericksburg. Here he is, dissenting in 1992 from the Court's ruling against prayers at a high-school graduation:
[S]ince the Pledge of Allegiance has been revised . . . to include the phrase 'under God,' recital of the Pledge would appear to raise the same Establishment Clause issue as the [graduation] invocation and benediction. If students were psychologically coerced to remain standing during the invocation, they must also have been psychologically coerced, moments before, to stand for (and thereby, in the Court's view, take part in or appear to take part in) the Pledge. Must the Pledge therefore be barred from the public schools (both from graduation ceremonies and from the classroom)? In [the 1943 case of] Barnette, we held that a public school student could not be compelled to recite the Pledge; we did not even hint that she could not be compelled to observe respectful silence — indeed, even to stand in respectful silence — when those who wished to recite it did so. Logically, that ought to be the next project for the Court's bulldozer.
If Scalia has expressed such an obvious hostility to a judicial ban on 'under God' in an actual case, what on earth can be objectionable about the far-less copious remarks he made in January, when Newdow was only a remote possibility on the Court's docket? Only the most artificial distinction between on-the-bench and off-the-bench expressions of opinion can sustain his recusal.

* * *
To speak as plainly as possible, what we want in our federal judges are people who have strong opinions about the law and the Constitution. Do we really want to live by a fiction that says that their only opportunities to speak those opinions should occur on the bench in the decision of cases?

And to come to Alt's main point, do we want to live by the fiction that in examining nominees for the bench, we should express no curiosity about their opinions on constitutional law? Many of these nominees come before the Senate with long "paper trails" of articles, papers, even books on the subject. Michael McConnell, now on the Tenth Circuit, is one of the nation's most-distinguished commentators on the religion clauses of the First Amendment, with many publications on the subject. By Alt's reasoning, pushed to its logical conclusion, Judge McConnell should recuse himself from every case that arises under those clauses. Or is it that he should only recuse himself if any senator asked a question — and he answered it — that inquired about all those writings of his? To ask such questions is to reveal their absurdity.


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