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Should Justice Breyer Recuse Himself in Capital Cases?

I've met Justice Stephen Breyer only two or three times.  The first was 30 years ago at a meeting of interested parties (for want of a better term) concerning the about-to-become-effective federal Sentencing Guidelines.  Breyer was then a First Circuit judge and a USSC Commissioner.  I was pretty much of a nobody from DOJ, but had been in on the Guidelines' implementation.

I found then-Judge Breyer to be extremely friendly, modest, and engaging.  There was absolutely no hint of pulling rank; to the contrary, he was attentive and responsive throughout.

As a Justice, he has had occasion to consider death penalty cases.  It is now beyond sensible argument, in my view, that he's made up his mind that capital punishment is unconstitutional in all circumstances, see, e.g., this entry from SL&P. Whether he's right or wrong about that (I think he's clearly wrong), I believe the federal recusal statute, 28 USC 455, now requires that he not take part in future capital cases, including, I have a strong feeling, the one that's coming tonight about the double execution in Arkansas. 


Are you asserting, Bill, that Justice Breyer's view on the Eighth Amendment means "he has a personal bias or prejudice"?

Especially in light of your first paragraph, I have long thought Justice Breyer ought to perhaps recuse himself in cases involving the constitutionality of the Guidelines he helped write. But I have never understood the recusal statute as serving as a basis for requiring recusal based on the constitutional conclusion of a judge or Justice. I do not believe Justices Brennan or Marshall ever recused themselves, nor do I recall them being urged to do so --- though I was young, so maybe there were call comparable to the one you are making here.

You quote the second part of the recusal statute while omitting the first -- and for present purposes -- operational part, which reads:

"Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

A Justice can hardy be impartial when he has already made up his mind about the question in the case, without knowing the facts or having read the briefs.

As your SLP entry today shows beyond any serious doubt, Justice Breyer has made up his mind about whether the death penalty can constitutionally be imposed in this country. Do you really think no reasonable question might be raised about his partiality?

That Justice Breyer has a fixed view on the modern meaning of the Eighth Amendment does not obviously make him "partial" any more than the fact that Justice Black had a fixed view of the First Amendment or that a lot of other Justice past and present come to have fixed views of other Amendments. Indeed, I hope all the Justices have already made up their minds that certain constitutional amendments preclude certain legislative actions.

It seems to me that you have every basis to criticize and question how Justice Breyer seeks to interpret and apply the Eighth Amendment. But I think it very dangerous to assert that any particular interpretation of the Constitution can be turned into an argument that a Justice is partial and must be recused.

Can you provide any examples of any judge or Justice being asked to recuse based solely on their avowed interpretation of the Constitution?

I agree with Prof. Berman.

Should Justice Thomas recuse himself on Confrontation Clause cases simply because he believes that the term "witnesses" has a fixed, narrow, meaning. Or should he (like Justice Breyer in the DP context) simply continue to disagree with the other eight justices who interpret the Clause differently?

I would love to think that I, as a guest blogger and adjunct law professor, have the power to be "dangerous" by arguing the (in my view obvious) point that Justice Breyer has prejudged the next death penalty case and that prejudgment against one party is the essence of partiality.

I think, however, that the real danger out there is presented by the leftist thugs who, through violence and intimidation, chase conservative speakers off campus.

Still, for however that may be: If you were the attorney for, say, Arkansas, would you think that you had anything like a fair shot at getting Breyer's vote in the next death penalty case?

Of course not. You'd think his vote was mailed in for your opponent. And that fact is, to say the very least, a reasonable basis to question his partiality. Accordingly, it meets the statutory definition for recusal.

P.S. Note the contrast with, say, the Chief Justice, who, although plainly believing that the death penalty is constitutional, will vote in a capital case for the defendant, depending on what argument is made in the briefs and from the podium.

"I agree with Prof. Berman."

That's for sure. The reason for your agreement is that both of you walk past the relevant language of the governing statute.

See Justice Kennedy's concurring opinion in Liteky v. US, 510 US 540, 557-558 (1994) for the scope of 455(a).

Suffice it to say, Bill, it doesn't comport with your plain meaning interpretation.

Breyer's fixed state-of-mind regarding capital punishment doesn't come close to the narrow 455(a) standard.

I had not previously been aware that my thinking is bound by concurring opinions (or majority opinions for that matter, see, e.g., Miranda) of any particular Justice.

Justice Breyer, a good and decent man, has prejudged the death penalty, as I'm pretty sure you know.

Would you like to appear before a jurist who had pre-judged your case?

No. And I wouldn't want to appear before a jurist who had a close personal relationship with the opposing party. (See Cheney v. United States District Court, 541 U.S. 913 (2004).)

I appreciate your acknowledgement that you would not want to appear before a jurist who had pre-judged your case. I likewise appreciate your decision not to contest my assertion that Justice Breyer has, at this point, pre-judged the constitutionality of the death penalty.

I have a different view of your gratuitous swipe at the late Antonin Scalia, a giant of our profession by any fair reckoning, and that will bring this comment thread to an end.

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