More Foolishness

Hi. My name is Judd, I am 12, and I write for Think Progress. Right now I don’t understand much, including what is and isn’t a conflict of interest. But if I try real hard, and eat my vegetables, one day I might get to write for the Nation or intern for Eric Alterman.

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165 replies
  1. 1
    Joe Albanese says:

    John, I’m not quite sure what point you are tying to make here. Are you saying its NOT a conflict of interest to rule on a case in which Bush is a defendant while being interviewed by Bush for a job? Or is the left just being silly for bringing up such inconsequential things as Conflicts of interest?

  2. 2
    John Cole says:

    No. It is not a conflict of interest for a Judge to be discussing a future possible appointment while ruling on a case. And trying to pretend it is the same situation as the earlier case is even sillier.

  3. 3
    Defense Guy says:

    I take the point to mean it is ridiculous to make the leap that applying for the job of a USSC justice is taking a job for Bush. It isn’t, its a job for us.

  4. 4
    John Cole says:

    From the WAPO article the chowderhead Judd linked to:

    Nobody is alleging that Roberts sided with the administration to curry favor with Bush, but some academics say Roberts should have, at the very least, considered stepping aside to make sure there was not an appearance of conflict.

    Or, rewritten:

    Nobody is alleging that Roberts sided with the administration to curry favor with Bush, but some academics say Roberts should have, at the very least, considered stepping aside to make sure THAT JACKASSES LIKE JUDD COULDN’T MAKE SHIT UP

  5. 5
    Marcus Wellby says:

    Hey John, please don’t equate the very good Nation magazine with the very self-important Eric Alterman.

    I find the Nation to be a very good read, sure it has a bias, but so does the American Conservative and that is just as good.

  6. 6
    ppGaz says:

    THAT JACKASSES LIKE JUDD COULDN’T MAKE SHIT UP

    Wow, now that sounds open minded. Listen, I don’t know the arcana of jurisprudence well enough to know whether there is or is not an ethics issue here, and I strongly suspect that noone around here does either.

    However, there such a thing as “the appearance of impropriety” and it is not imaginary. Does this thing cross that line? My hunch is that it doesn’t, but again, I don’t know, I would leave it to judges and lawyers to tell me.

    Meanwhile …. is this a flame thread?

  7. 7
    Mark says:

    You are about to become the target of a Judd-induced email jihad, buddy!

  8. 8
    John Cole says:

    ppGaz: I have given up on that idea. Given the incendiary tone of all of my posts, every thread is a flame war.

  9. 9
    Joe Albanese says:

    hey, I’m no expert on judical ethics thats for sure, but if someone is in a position to give me a bennefit (like a lifetime appointment to the Supreme Court) and I am at the same time ruling on a case in which that very person is a party, I would have to say there is a conflict of interest.

    The little snippet you ran only says that no one is making the charge that Roberts ruled in the way he did because he wanted to curry favor and get his appointment but that he showed poor judgement in not removing himself from the case, which I belive most would belive he should have. Appearance of conflict of interest is not some new term John. It is the basis of recusing oneself isn’t it? To avoid the appearance of conflict of interest? To be above suspicion? To not put yourself in a position where your decision could be questioned?
    But my main beef here is not whether he should have recused himself or not but rather your attack on the left for even bringing it up. Another “Democratic Stupidity” post. Really? Ok. If you say so John.

  10. 10
    John Cole says:

    No. You recuse yourself to avoid a conflict of interests. Not the appearance of a conflict of interest.

    But my main beef here is not whether he should have recused himself or not but rather your attack on the left for even bringing it up. Another “Democratic Stupidity” post. Really?

    So a Democratic website writes up some specious bullshit smearing Judge Roberts as unethical for stuff they just MADE UP, I call them on it, and what really has your knickers in a bind is that it is filed under DEMOCRATIC STUPIDITY.

    I give up.

  11. 11
    ppGaz says:

    Given the incendiary tone of all of my posts, every thread is a flame war.

    Sigh. I don’t have the energy for all those flame wars.

    Thank God NCAA football is on our doorstep.

  12. 12
    CJ says:

    John:
    You might be correct that there was no actual conflict of interest. But that is not the standard used to determine whether a judge should recuse himself. We can argue about the standard, but there is an issue here and it is not spurious. Considering that Judge Roberts has, in the past, been careful to recuse himself (ABA case) or withdrawn from an issue (see the memo cited in your link), it is not unreasonable to ask why he didn’t feel that recusal was in order for the Bush case as well.

    United States Code, Title 28, Section 455
    Disqualification of Justice, Judge, or Magistrate

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

    CJ

  13. 13
    Joe Albanese says:

    Some relevant sections that might apply:

    Federal law requires the automatic disqualification of a Federal judge under certain circumstances.

    In 1994, the U.S. Supreme Court held that “Disqualification is required if an objective observer would entertain reasonable questions about the judge’s impartiality.

    Courts have repeatedly held that positive proof of the partiality of a judge is not a requirement, only the appearance of partiality.

    States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985) (Section 455(a) “is directed against the appearance of partiality, whether or not the judge is actually biased.”)

    (“Section 455(a) of the Judicial Code, 28 U.S.C. §455(a), is not intended to protect litigants from actual bias in their judge but rather to promote public confidence in the impartiality of the judicial process.”).

    Further, the judge has a legal duty to disqualify himself even if there is no motion asking for his disqualification.
    Judges do not have discretion not to disqualify themselves. By law, they are bound to follow the law.

  14. 14
    Vladi G says:

    hey, I’m no expert on judical ethics thats for sure, but if someone is in a position to give me a bennefit (like a lifetime appointment to the Supreme Court) and I am at the same time ruling on a case in which that very person is a party, I would have to say there is a conflict of interest.

    Yeah, John, how can you say that there is no appearance of conflict here? It’s not like Judd went through 8 different contortions and pulled something out of his ass.

    Then again, if it’s OK for the (vice) President to go on a hunting trip with a justice while he has a case pending in that court, I guess “appearance” now means you actually have to see one side bribing the other.

    Which isn’t to say there was any malfeasance in this case, but once again, it’s the appearance of impropriety that EVERY lawyer spends at least a semester learning about, then has to take a test on.

  15. 15
    John Cole says:

    THIS ISN’T REASONABLE. WHICH IS WHY NO ONE IS ALLEGING A CONFLICT OF INTEREST. WHICH IS WHY HE DIDN’T RECUSE HIMSELF. WHICH IS WHY JUDD’S POST WAS SILLINESS.

  16. 16
    Joe Albanese says:

    John Cole incorrectly says:

    No. You recuse yourself to avoid a conflict of interests. Not the appearance of a conflict of interest.

    Can we file this under John Cole’s Stupidity?

  17. 17
    tBone says:

    You recuse yourself to avoid a conflict of interests. Not the appearance of a conflict of interest.

    I don’t know how it works in judicial matters, but even the appearance of a conflict of interest seems to be a concern in a lot of other circles.

    I gotta say this seems like a pretty weak knock on Roberts, though.

  18. 18
    Vladi G says:

    And John, could you please explain what Judd “made up”? It looks to me like everything he’s discussing is pretty much an undisputed fact.

    1) Bush and Roberts met about the SCOTUS appointment while Bush had a case pending before Roberts
    2) Roberts joined in a ruling that favored Bush
    3) Roberst previously recused himself on a matter in which there was an appearance of conflict.

    So what did he “make up”?

  19. 19
    Joe Albanese says:

    John now changes his story and remarkably says:

    THIS ISN’T REASONABLE. WHICH IS WHY NO ONE IS ALLEGING A CONFLICT OF INTEREST

    no…. conflict of interest is NOT the standard that the law requires judges to recuse themselves. Read the law John and stop being so thick headed.

  20. 20
    Vladi G says:

    THIS ISN’T REASONABLE. WHICH IS WHY NO ONE IS ALLEGING A CONFLICT OF INTEREST. WHICH IS WHY HE DIDN’T RECUSE HIMSELF. WHICH IS WHY JUDD’S POST WAS SILLINESS.

    Wow! If you really think it’s unreasonable to even questions someone’s impartiality under these circumstances, than you’ve really lost it. Seriously.

    I hate to bring up the old line, but if this had been Clinton…..

  21. 21
    neil says:

    It seems like your beef is really with the Washington Post. They are the ones who wrote the article alleging a possible conflict of interest. All Judd did is point out that Roberts has recused himself when it came to a case involving a prospective employer.

  22. 22
    John Cole says:

    No- My beef is with this:

    So Roberts understands it’s unethical to make professional decisions that impact a prospective employer. When it came to the prospect of a nomination to the Supreme Court, Roberts simply set ethics aside.

    Judd has completely created a false equivalency between a situation in which Roberts was right to recuse himself and one in which he was right not to recuse himself, and he is using that as proof that “Roberts Knew He Was Acting Unethically.”

  23. 23
    Otto Man says:

    It’s a weak slam on Roberts, but the Post article has it right. Judges regularly recuse themselves from cases to avoid even the hint of impropriety.

    When the Supreme Court ruled against racially-restrictive housing covenants in ’48, three of the justices recused themselves because they and/or some of their family members owned property with such covenants in the deeds. The conflict was remote and broad, but they still bowed out.

    Of course, that was a different era. Now Scalia and Cheney can go on vacation together while Cheney had business pending before the court, and Scalia thinks it’s no problem.

  24. 24
    Vladi G says:

    Judd has completely created a false equivalency between a situation in which Roberts was right to recuse himself and one in which he was right not to recuse himself

    Yeah, but it’s completely your opinion, and reasonable minds may and will differ. So essentially you’re going nuts because of a simple disagreement between you and Judd.

  25. 25
    Otto Man says:

    Judd has completely created a false equivalency between a situation in which Roberts was right to recuse himself and one in which he was right not to recuse himself, and he is using that as proof that “Roberts Knew He Was Acting Unethically.”

    That seems fair. But I still think he would’ve been wise to recuse himself.

  26. 26
    Vladi G says:

    So I guess your only argument is on the “knew he was acting unethically” part. Fair enough. But not something I’d get particularly worked up about. And something I’d ask him about if I were a Senator.

  27. 27
    Joe Albanese says:

    John keeps on digging:

    and one in which he was right not to recuse himself

    Why for the life of me would it not been the right thing to do to recuse himself? The VERY REASON we are having this conversation is because it created the APPEARNACE of a conflict of interest. That is the standard by which he is required to recuse himself.

  28. 28
    John Cole says:

    Read the law John and stop being so thick headed.

    How about you read the damned case you yourself brought up, because it doesn’t say what you think:

  29. 29
    John Cole says:

    The only reason you guys are saying he should recuse himself is because then it would have avoided the opportunity FOR FOLKS LIKE YOU TO MAKE THESE SPECIOUS ARGUMENTS.

    “He should have recused himself so people like me couldn’t be jerks!”

  30. 30
    Mike S says:

    I take the point to mean it is ridiculous to make the leap that applying for the job of a USSC justice is taking a job for Bush. It isn’t, its a job for us.

    Huh? Exactly who was in charge of recommending him for that Job? The US?

    No. It was President Bush. And I think it is a reasonable question of whether he would have recommended him for that job had Roberts ruled against him.

    I like you John and I don’t for a minute think you are the typical shill for President Bush, but I think you are way off base here. And before anyone accuses me of looking for any reason to bash a Republican appointee, I was totally against the bs sexual harrassment charges against Thomas.

    But this is very different. I can’t believe you don’t see that.

  31. 31
    jobiuspublius says:

    Joe Albanese, thanks for the relevant facts. Now I understand why “appearance of conflict of interest” is mentioned so often in relation to judicial … er, stuff. And here I was thinking that “appearance of conflict of interest” was just a tease. If only the rest of tha goverment had to adhere to a law like this. The good news is that we have sample legislation to point to and say “make it so”, make it so rat bastard politicians can’t rip us off anymore. I’m nervouse, this is too good to be true. Must keep pinching.

  32. 32
    neil says:

    Considering this this TNR article I read earlier today about the Bush administration’s vigorous defenses of the new powers to detain and punish that Bush has carved out for himself, there is definitely a reason to wonder, here.

    I don’t think it’s at all far-fetched to presume a conflict of interest, at least enough for Roberts to recuse himself. The chaff thrown out by the senior administration official about every federal judge having to recuse himself is totally inapplicable. _Hamdan_ is a highly unique case, and Roberts was in a highly unique position. Now, I doubt that he would have ruled against Bush’s wishes even if he was not under the microscope at the time. But the defense should be “Roberts’ legal reasoning is correct”, not “SHUT UP YOU LIBERAL SCUM, HOW DARE YOU QUESTION THIS GREAT MAN?”

  33. 33
    EphSooner says:

    So let me get this straight. Roberts had a conflict, because he was deciding a case where the Executive Branch (NOT Bush personally) was a party?

    So according to this retardo-logic, if Roberts is confirmed, he will have to recuse himself from any case in which the Executive Branch is a party, because Bush nominated him?

  34. 34
    Jorge says:

    Imagine this headline back in the day (ignore how he wouldn’t have been tried like this)

    “On the day he ruled in favor of Clinton in the President’s Perjury trial, Judge “so and so” met with Bill Clinton about a future appointment to the Supreme Court.

  35. 35
    Joe Albanese says:

    John slowly losing control now shouts:

    The only reason you guys are saying he should recuse himself is because then it would have avoided the opportunity FOR FOLKS LIKE YOU TO MAKE THESE SPECIOUS ARGUMENTS.

    Couple of points. One: “folks like you”. My response John, FU. Attack my arguments. Show me I’m wrong. Educate me. But when you resort to crap like that I lose a lot of respect for you.

    Two: Specious argument? why is it so specious. What if Roberts ruled against the administration on this very important case. Do you think he would still have been offered the job? Maybe. Maybe not. But knowing how this adminstration is not the most tolerant of opposing views (i.e. Paul O’neil, Richard Clarke, Joe Wilson etc etc) he may very well not have been offered the job. Maybe that would influence a lesser man than Roberts to rule in favor of his new prospective employer. You see John.. one could have doubts as to the ruling because some SCUM like me might think he only ruled so he could get the job he has coveted since he was in puberty judging by his bio.

    That is very the reason for the requirement for judges to recuse themselves in such circumstance. Its really not that hard to understand John if you weren’t so filled with contempt for those on the other side of the aisle.

  36. 36
    KC says:

    I’m not sure that a conflict of interest is that much different than the “appearance” of one. According to that article in the Washington Post, the issue of his conflict of interest is clearly debatable in terms of ethics. After all, three lawyers are going to argue in Slate that by not recusing himself, Roberts was acting unethically.

    On the other hand, while I think Roberts should get a few questions on this issue, the left shouldn’t jump the ship on it either. William Rehnquist, after all, recused himself from US v Nixon because he worked as an Assistant Attorney General in Nixon’s administration. He opted out of the decision because it could have been legitimately perceived as a loyalist self-protectionist act (assuming it was in Nixon’s favor) rather than a well-considered independent ruling. The difference is that Rehnquist worked for Nixon, a man whose administration was under investigation. Roberts, however, has not worked in an official capacity for the Bush administration.

  37. 37
  38. 38
    Gary Farber says:

    John, I may be wrong, but my understanding is that you are not a lawyer. But you are making absolute pronouncements on a legal issue that you are not qualified to speak on.

    “It is not a conflict of interest for a Judge to be discussing a future possible appointment while ruling on a case.”

    Neither am I qualified to speak as to whether or not it is a conflict of interest. But:

    Legal experts questioned about the matter were divided over the issue, underscoring the nebulous nature of conflict-of-interest standards for federal judges.

    It’s a valid question. I don’t know the answer. Neither do you.

  39. 39
    Jorge says:

    I agree, Thinkprogress is a favorite site of mine but I think their zeal about Roberst is misguided. Though their mission statement is a bit different than John’s. When they first appeared during the debates last year, they billed themselves as a home for talking points for Democrats to counter balance the talking point sites of the rights. You know, left leaning think tanks to balance the right wing think tanks.

    I always keep that in mind when I read Thinkprogress. This is a rabidly partisan talking points site, not a traditional commentary blog.

  40. 40
    CJ says:

    One thing I would want to know is at what point the Bush administration initially contacted Roberts about the possible appointment. I would give Roberts much more slack if the contact occurred after much of the Bush case had been written and agreed upon by the court as a whole. If the contact came before work had started on the case at the DC circuit, I would say that his toes should be held to the fire.

    CJ

  41. 41
    John Cole says:

    Couple of points. One: “folks like you”. My response John, FU. Attack my arguments. Show me I’m wrong. Educate me. But when you resort to crap like that I lose a lot of respect for you.

    That is an attack on your damned argument, because your argument is that he should have recused himself so that people like you could not allege impropriety. Jesus.

    And I think you are misreading the statutes and decisions, from what I have seen. You take this statement:

    Disqualification is required if an objective observer would entertain reasonable questions about the judge’s impartiality.

    and infer that it means that a Judge is required to recuse himself if any casual observer can raise questions about his impartiality (ie: It might be possible that he may be influenced, etc.), when I take it to read that a judge must recuse himself if an objective observer might actually have reasonable questions about impartiality. There is a distinction. You think that just if someone can raise a question about conflict of interest, then someone should recuse themselves. I read it to mean an observer should have actual reasons (IE reasonable questions- some doubt, etc.) that the judge is not being or will not be impartial.

    And, of course, my interpretation is further reinforced by the fact that NO ONE IS ACTUALLY ALLEGING A CONFLICT OF INTEREST. And again, the Balisteri case does not say what you think it does.

  42. 42
    Blue Neponset says:

    “He should have recused himself so people like me couldn’t be jerks!”

    We need no excuse to be jerks my friend.

    This whole argument is mostly smoke, but there is some fire. I am not convinced Roberts should have recused himself but it wouldn’t take much more to change my mind about that.

    On the Malkin sleazeball scale Judd’s post doesn’t even rate a 3. I am not sure why you are blowing a gasket about this. The NARAL ad was a gasket blower, but this is just partisan politics. I would much rather discuss Robert’s views on abortion, gay marriage and privacy rights but there doesn’t seem to be too much available material regarding those things.

    It is unfortunate but there is a lot of partisan politics in politics these days. I hate to sound so ‘boys will be boys’ about it, but if all I did was jump up and down about the partisan pundits on the blogosphere I would do little else.

  43. 43
    jobiuspublius says:

    Remember them 14 senator that signed that agreement while the nuclear option was threatening to rip the senate in two? They’ll have to smoke us some real strong crack not to filibuster Robert’s now. I love PFAW.

  44. 44
    Davebo says:

    Hi, my name is John Cole, or JOHN COLE if I’m really feeling whacked out.

    I’m not a lawyer, I don’t even play one on TV. But since a severe case of cognitive dissonence has caused the left half of my brain to cease functioning I’ve decided that I’m more than qualified to operate heavy machinery.

    And you know, it’s people like John Tesh that keep me in the Republican party.

  45. 45
    jobiuspublius says:

    ppGaz Says:

    Did I mention? Just days away …..
    =====================================

    College football is supposed to smoke screen for Dear Leader? Seesh, how fast and hard the mighty fall. We may see impeachment for Christmass. Yes! There is a Santa Clause and he’s a liberal. WEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE

  46. 46
    John S. says:

    Somebody should warn Judd that his actions are keeping John Cole a Republican, and therefore he should cease his stupidity so that John will consider being a Democrat.

  47. 47
    Davebo says:

    I can’t decide who I hate more.

    That little PUNK Judd, or the SCUM that thinks orange juice is just for breakfast!

  48. 48
    neil says:

    You can allege the appearance of a conflict of interest without actually alleging a conflict of interest. It’s much easier to identify the former than the latter, much easier to assess whether it has actually taken place, and in general a good idea to avoid it.

    In this case, there is the appearance of a conflict of interest, from an objective point of view. Roberts was ruling on an issue which Bush has shown significant interest on the same day that Bush was deciding to appoint him to the highest court in the land. There is the appearance of a conflict of interest there, and by not avoiding it, Roberts has subjected himself to scrutiny.

  49. 49
    John Cole says:

    Hi, my name is John Cole, or JOHN COLE if I’m really feeling whacked out.

    I’m not a lawyer, I don’t even play one on TV. But since a severe case of cognitive dissonence has caused the left half of my brain to cease functioning I’ve decided that I’m more than qualified to operate heavy machinery.

    And you know, it’s people like John Tesh that keep me in the Republican party.

    Heh. John Tesh frightens me. Almost as much as Hasselhof.

  50. 50
    KC says:

    Roberts ought to be question about this, and whether it’s ethical or not is clearly debatable, but that doesn’t mean there was a conflict of interest. John’s right. Here’s what I wrote above and I think it’s an important consideration:

    On the other hand, while I think Roberts should get a few questions on this issue, the left shouldn’t jump the ship on it either. William Rehnquist, after all, recused himself from US v Nixon because he worked as an Assistant Attorney General in Nixon’s administration. He opted out of the decision because it could have been legitimately perceived as a loyalist self-protectionist act (assuming it was in Nixon’s favor) rather than a well-considered independent ruling. The difference is that Rehnquist worked for Nixon, a man whose administration was under investigation. Roberts, however, has not worked in an official capacity for the Bush administration.

    This to me is an important point. Roberts did not work for Bush, he’s not been implicated in the investigation of the Plame affair, nor has he been responsible in any official capacity for Bush’s war decisions. He may like Bush and want to make him king, but that doesn’t mean he did anything bad by being interviewed by him and ruling in a decision concerning executive powers at the same time. Now, I wish he would have recused himself, but my wishes are a separate issue altogether.

  51. 51
    tBone says:

    I read it to mean an observer should have actual reasons (IE reasonable questions- some doubt, etc.) that the judge is not being or will not be impartial.

    I get the distinction you’re making, but it seems like a pretty fine line to me. Is it reasonable to ask if a possible Supreme Court appointment might have some influence on a case involving the person with the power to offer that appointment? That doesn’t seem all that specious to me.

    Again, I don’t think this should be show-stopper for Roberts, but I don’t understand your fury on this one.

  52. 52
    ppGaz says:

    College football is supposed to smoke screen for Dear Leader?

    Oh no, not at all. Just trying to take a break from the “Oh yeah? So’s your old man!” arguments.

    Please confirm Roberts so we can move on to something else.

    Dear Leader will get his comeuppance. In the fullness of time.

    –//

  53. 53
    Robert Chavez says:

    Well, I am a lawyer. I took my ethics class from Judge Henry Saad(yes, the same Judge Saad that was a Bush appointee who was dropped in the compromise). Saad’s take on the issue, and what I subsequently wrote for my conflicts essay on the bar, and what I take as my philosophy from conflicts was this: “Don’t. Just don’t. Don’t enter into a relationship, don’t sit for an interview, don’t talk to somebody, if there is even the remotest posibility that a conflict could develop. Don’t do it if a conflict could be alleged. Don’t do it if you think that maybe somebody could allege a conflict. Lawyers have so few actual ethical rules that they have to live by, so if you can’t even avoid an appearence of impropriety, then you’re too dumb of a shit to practice law.”

    Judge Saad had quite an extensive vocabulary. Great teacher.

    My take as a lawyer? Probably wasn’t a conflict. But it was a dumb move nonetheless, and one that he could have entirely avoided, and one that he should have known could have been questioned. He didn’t follow Judge Saad’s “Don’t” rule, as I took to calling it.

  54. 54
    John Cole says:

    I am not furious about anyuthing. I was just being snarky. You guys think I am mad all the time when I am not.

    I do get pissy with Joe, who continuously yanks my chain, but I am not ANGRY or FURIOUS. Why would I be- this is such obvious stupidity that it will in no way impact the Roberts judicial hearings. Even everyone on this list agrees there was no conflict of interest, let alone that “Judge Roberts is unethical’ as Judd stated.

  55. 55
    Davebo says:

    John Tesh and Hasselhof frightens you John?

    We’re talking European superstars here. Even the French aren’t afraid of them!

  56. 56
    Boronx says:

    No. You recuse yourself to avoid a conflict of interests. Not the appearance of a conflict of interest.

    My, how standards have slipped over the years. The reason “appearance of a conflict of interest” has been a standard is because it’s so hard to prove actual conflict of interest. It would take ten seconds off the record for a man like Bush to get his point across.

    The growing number of people that have moved to your lesser standard, including many politicians who insist over and over that the bar is lower now than it was, have let too many crooks get away with too much for too long.

  57. 57
    KC says:

    I think we can all agree on one thing, Hasselhof is pretty cool.

  58. 58
    jobiuspublius says:

    Roberts has a long history of working for Republican presidants. You can’t hold that against him, sort of, because he did it as their lawyer. But, now he is a judge. He’s in another branch of government. He’s supposed to be independant. Yet, it appears he’s still taking orders from the presidant. It is totally inappropriate for any court to be dependant on the presidant, let alone the SCOTUS. Roberts is toast unless the senate smokes all the heroin in Afganistan.

  59. 59
    Davebo says:

    KC

    If he moves in next door your lawn will die.

  60. 60
    Joe Albanese says:

    John Cole:

    And again, the Balisteri case does not say what you think it does.

    John the link I gave you must have had half a dozen cases each with a different aspect of conflict of interest. I have not, nor am I about to, read them all. Just going by the summaries that were given.

    John Cole:

    I take it to read that a judge must recuse himself if an objective observer might actually have reasonable questions about impartiality.

    Being in law enforcement for over 25 years I understand the concept of “reasonableness”. And, though subjective, I believe it is “reasonable” to question if Roberts would be influenced by the fact that one of the defendants in his case is in the position to offer him a benefit (conflict of interest). Again the interpetations of the law say over and over again that the judge need not be shown to be biased only that it could reasonably be questioned.

    Now, as others have linked to, there is a debate about this among the experts of which I am not one, so I will not press it any further. But the very fact that it is a debatable point among experts tells me that you were off base to attack Think Progress for even bringing it up. You were not aware, judging from your initial posts, that the appearance of conflict of interest is a requirement for recusal. Now you know that. You should thank Think Progress for educating you. smile

  61. 61
    tBone says:

    I am not furious about anyuthing. I was just being snarky. You guys think I am mad all the time when I am not.

    Sorry. Sometimes it’s hard to tell. How ’bout an animated giant-pulsing-forehead-vein icon to mark the posts where you’re actually pissed?

  62. 62
    Vladi G says:

    Disqualification is required if an objective observer would entertain reasonable questions about the judge’s impartiality.

    You are really misinterpreting this, John. If an objective person could think there is an issue (he doesn’t have to believe that there is one, he just has to believe that it’s reasonable for there to be an issue), it’s grounds for recusal. It’s a pretty low standard.

  63. 63
    Joe Albanese says:

    John Cole:

    I do get pissy with Joe, who continuously yanks my chain

    I used to burn ants with a magnifying glass when I was young, but yanking your chain is much more fun. And almost as easy.

  64. 64
    John Cole says:

    Sorry. Sometimes it’s hard to tell. How ‘bout an animated giant-pulsing-forehead-vein icon to mark the posts where you’re actually pissed?

    Lol. I thought it was pretty obvious this was just me being feisty and obnoxious. I mean, Judd Legum isn’t really twelve years old, and actually has multiple degrees, including a law degree. He actually probably even does understand conflict of interest, and interning for Alterman would be a step down from his position as research director.

    Those could have been clues.

  65. 65

    That Think Progress piece is absolutely stupid drivvel. Following it out to its logical conclusion, no judge being considered before the Supreme Court could ever sit on a case involving the United States.

    First, we do not know the details of Roberts’ discussions with the White House. What we do know is that he did not have direct meetings with the final decision makers until the end of the process.

    Second, we know, because we know how courts work, that the decisions are generally made soon after the case is heard, though it may take time to formulate the opinion.

    Third, it is only a conflict of interest if you have a direct interest in the outcome of the case. Again, just because he was being considered — along with dozens others at the time — does not make it a conflict of interest. That’s a lame argument respectable people shouldn’t take seriously. Roberts, at the time, had no financial interest in the decision, no family members involved in the decision, and no personal relationship with any party involved. Therefore, there was no conflict of interest.

    Again, decisions are made shortly after oral arguments. Just because the opinion was released about the time Roberts was chosen, does not mean in any way, shape, or form that Roberts sided with the government to get picked.

    In fact, everything we know about Roberts jurisprudence suggests that whether he was appointed or not, the way he voted would not have changed.

    If this is all you’ve got, say hello to Justice Roberts.

  66. 66
    tBone says:

    Those could have been clues.

    Heh. Yeah yeah – I got the snark in the original post. It was some of the ALL CAPS REPLIES in the comments section that I was referring to. Which I guess were because of the chain-yanking or ant-burning or whatever metaphor we’re using, not the original story.

    So anyway – how ’bout that Hasselhoff, huh?

  67. 67
    BinkyBoy says:

    Third, it is only a conflict of interest if you have a direct interest in the outcome of the case.

    Yeah, being considered for an appointment to the Supreme Court would never be in someone’s direct interest.

    Sheesh, go drink some more Kool-Aid and let the adults continue their discussion.

  68. 68
    Otto Man says:

    I think we can all agree on one thing, Hasselhof is pretty cool.

    I once had dinner — my birthday, no less — two tables down from Der Hasselhoff. He was loudly holding court at a table with two other people, absolutely begging for attention. That was a little sad, but basking in the presence of Michael Knight made it alllllright.

  69. 69
    neil says:

    By the way, John, you have still not corrected your post which falsely states that the Army is above its recruitment target. Just thought I’d mention it.

  70. 70
    jobiuspublius says:

    It appears to me that there is a conflict of interest. It is not neccesary to prove actual conflict of interest, only the appearance. Most people will agree that Roberts is all Bushed up.

  71. 71
    Otto Man says:

    Again, just because he was being considered—along with dozens others at the time—does not make it a conflict of interest. That’s a lame argument respectable people shouldn’t take seriously. Roberts, at the time, had no financial interest in the decision, no family members involved in the decision, and no personal relationship with any party involved. Therefore, there was no conflict of interest.

    As others have said, the slightest appearance of potential conflict is cause to recuse yourself. And being considered for a judge’s dream job could count.

    Again, decisions are made shortly after oral arguments. Just because the opinion was released about the time Roberts was chosen, does not mean in any way, shape, or form that Roberts sided with the government to get picked.

    I don’t think anyone — here, at least — is claiming that there was some kind of quid pro quo going on. Nor do I think anyone here is claiming Roberts would’ve voted the other way without being under consideration for the Supreme Court.

    What we’re saying is that given that the norm for judges is to recuse themselves whenever there is the slightest chance that anyone — such as this Judd guy — might see your action as a conflict of interest, then you’re out. And the fact that this Judd guy has his panties in a wad over it only proves the point. He would’ve been better off recusing himself.

    If this is all you’ve got, say hello to Justice Roberts.

    There’s not exactly a mass movement on the left to oppose this guy. NARAL is up in arms, but they’re in the minority.

    I said hello to Justice Roberts a long time ago. The day he was announced, I said this was a done deal. Haven’t seen anything to change my mind, and certainly not this.

  72. 72
    jobiuspublius says:

    …. Unfortunalely, most people will look for actual conflict of interest and miss the point.

  73. 73
    Biff says:

    You recuse yourself to avoid a conflict of interests. Not the appearance of a conflict of interest.

    Others have already pointed this out, I guess, but this is simply a false distinction.

    Roberts was a judge on a case, and had an interest in deciding it fairly, even though Bush was the defendant. At the same time, Bush was considering nominating Roberts for a Justiceship, so he had an interest in pleasing Bush. That’s a conflict of interest. It’s not a matter of opinion.

    Now, that doesn’t mean that Roberts made a corrupt decision in the actual case. No one is alleging that, but only because it would take a full investigation and trial to find out, and we give Roberts the benefit of the doubt. But if judges routinely sat on cases where they had a conflict of interest, public confidence in their impartiality would erode, and we’d probably stop giving them the benefit of the doubt. That’s the purpose of the recusal custom.

    So according to this retardo-logic, if Roberts is confirmed, he will have to recuse himself from any case in which the Executive Branch is a party, because Bush nominated him?

    No, of course not. That’s why Justices have lifetime appointments, to shield them from influence by the other branches. Before you go accusing people of “retardo-logic” you may want to familiarize yourself with the history of the Constitution.

    Following it out to its logical conclusion, no judge being considered before the Supreme Court could ever sit on a case involving the United States.

    Well, yes. Why is that so bad? The term of recusal should not be for very long, a few weeks at most.

  74. 74
    John Cole says:

    By the way, John, you have still not corrected your post which falsely states that the Army is above its recruitment target. Just thought I’d mention it.

    I have never stated the Army is above its recruitment target.

  75. 75
    jobiuspublius says:

    It would be interesting if Roberts had to recuse himself everytime Dear Leaders mess needed sorting out at SCOTUS. The court would them consist of 8 people? Who breaks the tie. How would his temporary replacement be chosen, assuming there is one? Do you see what a hassle this guy is?

  76. 76
    neil says:

    * What about first-time enlistment rates, since that was the issue last spring? The Army is running at 108 percent of its needs. Guess not every young American despises his or her country and our president.

    * The Army Reserve is a tougher sell, given that it takes men and women away from their families and careers on short notice. Well, Reserve recruitment stands at 102 percent of requirements.

    * And then there’s the Army National Guard. We’ve been told for two years that the Guard was in free-fall. Really? Guard recruitment and retention comes out to 106 percent of its requirements as of June 30. (I’ve even heard a rumor that Al Franken and Tim Robbins signed up — but let’s wait for confirmation on that.)

    Balloon Juice, Some Positive Spin, 24/8/2005

    Gen. Peter Schoomaker told reporters Thursday that he expects the Army to miss its annual goal of 80,000 new active-duty recruits by “a couple thousand,” adding that he expects recruiting in September and during the next fiscal year to be “difficult.”

    Washington Post,
    Army Likely to Meet Month’s, But Not Year’s, Recruiting Goal
    , 26/8/2005

  77. 77
    Boronx says:

    This is pretty clearly a conflict of interest, but one, probably, that we’re going to have to live with. Almost every judge, whether state or federal, is in danger of receiving higher appointment, and the executive branch is in court all the time defending it’s interpretation-through-action of the law.

  78. 78
    neil says:

    Bonus:

    …the masses, who, awash in outrage, blinded by hatred for Bush, will throw critical reasoning aside, and see nothing wrong with outright lies, as long as it helps their cause…

    Balloon Juice, The Anti-War Left’s Perfect Weapon, 12/8/2005

  79. 79
    neil says:

    Yes, Boronx, because every judge, whether state or federal, is currently on the shortlist for the first Supreme Court appointment since 1994, and also is currently ruling on an unprecedented expansion of the power of the executive branch to try and punish detainees without oversight.

  80. 80
    Geek, Esq. says:

    JC:

    Sorry, but you and the rightwingers are full of shit on this one if you’re claiming that the notion that there’s a conflict is a leftist fantasy.

    I refer you to this article.

    Federal law deems public trust in the courts so critical that it requires judges to step aside if their “impartiality might reasonably be questioned,” even if the judge is completely impartial as a matter of fact. As Justice John Paul Stevens wrote in a 1988 Supreme Court opinion, “the very purpose of [this law] is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.” The requirement of an appearance of impartiality has been cited in situations like the one here, leading to the disqualification of a judge or the reversal of a verdict.

    In 1985, a federal appeals court in Chicago cited the requirement of the appearance of impartiality when it ordered the recusal of a federal judge who, planning to leave the bench, had hired a “headhunter” to approach law firms in the city. By mistake—and, in fact, contrary to the judge’s instructions—the headhunter contacted two opposing firms in a case then pending before the judge. One firm rejected the overture outright. The other was negative but not quite as definitive. Writing for the Court of Appeals, Judge Richard A. Posner emphasized that the trial judge “is a judge of unblemished honor and sterling character,” and that he “is accused of, and has committed, no impropriety.” Nevertheless, the court ordered the judge to recuse himself because of the appearance of partiality. “The dignity and independence of the judiciary are diminished when the judge comes before lawyers in the case in the role of a suppliant for employment. The public cannot be confident that a case tried under such conditions will be decided in accordance with the highest traditions of the judiciary.” Although both law firms had refused to offer him employment, the court held that “an objective observer might wonder whether [the judge] might not at some unconscious level favor the firm … that had not as definitively rejected him.”

    In the fall and winter of 1984, a criminal-trial judge in the District of Columbia was discussing a managerial position with the Department of Justice while the local U.S. attorney’s office—which is part of the department—was prosecuting an intent-to-kill case before him. Following the conviction and sentence, the judge was offered the department job and accepted. On appeal, the United States conceded that the judge had acted improperly by presiding at the trial during the employment negotiations. It argued, however, that the conviction should not be overturned. The appeals court disagreed. Relying on Judge Posner’s opinion in the Chicago case, as well as the rules of judicial ethics, the court vacated the conviction even though the defendant did not “claim that his trial was unfair or that the [the judge] was actually biased against him.” The court was “persuaded that an objective observer might have difficulty understanding that [the judge] did not … realize … that others might question his impartiality.”

    So, the problem in Hamdan is not that Roberts may have cast his vote to improve his chances of promotion. We believe he is a man of integrity who voted as he thought the law required. The problem is that if one side that very much wants to win a certain case can secretly approach the judge about a dream job while the case is still under active consideration, and especially if the judge shows interest in the job, the public’s trust in the judiciary (not to mention the opposing party’s) suffers because the public can never know how the approach may have affected the judge’s thinking. Perhaps, as Judge Posner wrote, the judge may have been influenced even in ways that he may not consciously recognize.

  81. 81
    DougJ says:

    If an objective person could think there is an issue (he doesn’t have to believe that there is one, he just has to believe that it’s reasonable for there to be an issue), it’s grounds for recusal. It’s a pretty low standard.

    Objective? Like the MSM is objective? Like evolution-loving librul scientists are objective? If that’s what you mean, then it’s a pretty high standard, I’d say. Those “objective” people will object to anything and everything, provided it is done by a Republican.

  82. 82
    John Cole says:

    Neil: I never said that stuff, Ralph Peters did, and I attributed it to him. That is what the blockquoting is for, that is what the link is for…

    Not only that, but you and I must have a different idea of what spin is- I think it is, for the most part, bullshit.

    Additionally, I found the re-enlistment numbers interesting. Also, I am unaware if it is impossible for the Army to run above % for what is needed, and below % for what is desired.

    Finally, I have repeatedly written about the administration and the military fudging the numbers.

    In short, a correction is not necessary, a correction is not warranted, I never said what you are accusing me of having said, and you can stop it any time you like.

  83. 83
    Nikki says:

    This post is such a non-issue. The bottom line is Judd is correct and Roberts should’ve recused himself to avoid the APPEARANCE of a conflict of interest.

    What’s the matter, John? Feel you’ve taken too many hits from wingnuts? Trying to get back in good with the cool kids?

  84. 84
    Nikki says:

    In short, a correction is not necessary, a correction is not warranted…

    Even though Peters himself corrected his article?

  85. 85

    Hi John,

    I am just curious as to what you’re (professional or intellectual) beef with Alterman is?

    JR

  86. 86
    jobiuspublius says:

    Geek, Esq., leads me to suspect that Roberts was just a smoke screen all along and will not get confirmed, unless I’ve underestimated how whipped and crazy the Senate is. You never know what the makers of the nuclear option will smoke. This summer is the calm before the storm, I feel.

  87. 87
    Geek, Esq. says:

    I can only imagine that Erick’s law school taught ethics on a Pass-Fail basis. Though, as a lawyer, Mr. Erickson’s skills at statutory construction and interpreting case law are pathetic.

    Third, it is only a conflict of interest if you have a direct interest in the outcome of the case.

    Seriously, are you a liar or just pig ignorant about judicial ethics?

    The question is whether the canons of judicial ethics prohibit the act.

    28 USC 455(a) governs here, not the Erick Erickson “I just make shit up about legal ethics” rule.

    What does the statute say?

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

    How have Federal courts interpreted and applied the statute?

    “The goal of section 455(a) is to avoid even the appearance of partiality. If it would appear to a reasonable person that a judge has knowledge of facts that would give him an interest in the litigation then an appearance of partiality is created even though no actual partiality exists because the judge does not recall the facts, because the judge actually has no interest in the case or because the judge is pure in heart and incorruptible.

    How about some more examples, provided by people who undisputably know what they’re talking about?

    I quoted the case law above.

    Fact in point, is that Erick and John are just plain wrong on this, and heaping personal insults on someone who is right won’t make their argument any less shitty.

  88. 88
    John Cole says:

    Even though Peters himself corrected his article?

    And guess what Nikki? The correction is on the SAME PAGE AS THE STORY THAT HAS BEEN LINKED!

    I am not sure what I have to do to this story to satisfy you…

  89. 89
    PotVsKtl says:

    It’s funny, Mr. Cole posts an article on recruitment numbers with a positive spin that even the author himself pointed out was false and misleading, but leaves it up with no correction. Then he says appearance of conflict of interest isn’t a reason to recuse yourself, but refuses to admit he was wrong and has since dropped the CAPITAL LETTERS I HATE LIBERAL WHINERS act.

    You been taking lessons from Rove, John?

  90. 90
    PotVsKtl says:

    My mistake, the period for buddy-buddy “heh” comments which follows the realization of having made patently false statements has passed.

  91. 91
    John Cole says:

    Geek: I have already addressed that here.

    My main beef with this is the statement that this is somehow proof that he is unethical. There may be debate about whether or not he should recuse himself, and I would disagree that he needed to recuse himself. I think the appearance of impropriety is something that is being misused here, because no one is alleging he actually voted one way on a case in order to secure a seat. Thus, the only appearance of impropriety is when someone quite unreasonably states (such as Legum did)that there is one- just because there could be a problem.

    Now, I may be wrong about that- the cases mentioned earlier seemed to have an actual higher threshold for recusal than just an appearance (in particular, the Balisteri case). But I am not wrong about the overall intent of the Think Progress piece.

    They don’t want Judge Roberts to be a SCOTUS justice for a number of reasons, and now they are dead set on creating an ‘appearance of impropriety’ in order to then smear him as unethical.

    The ethical standards for judges are so that the public has faith in the legal system- not so partisan hacks can use those standards as a political weapon. And yes, my response to Judd was nasty- but not as nasty as floating a smear that a man who has served, by all regards, honorably and decently, is unethical. Particularly since no one thinks his opinion was changed by a possible SCOTUS position. There are no allegations of impropriety- just what I believe are dubious allegations of AN APPEARANCE OF IMPRORIETY.

  92. 92
    Geek, Esq. says:

    It’d help if you linked to a post you actually wrote, JC. ;)

    The term “ethical” is a bit of a hazard when discussing the obligations of lawyers and judges–it makes it seem like any violation of the ethics rules is a per se violation of a system of morals, rather than a violation of the profession’s rules of conduct.

    Still, try to think of it this way: Imagine you were opposing counsel in that case, and you find out what happened. Are you just a little pissed to find out this happened?

    If he failed to follow the basic rules of professional behavior for judges, that certainly reflects on his judgment and temperament, does it not?

    Now, Judd’s piece was slanted and ad hominem. But, that quote does reveal that Roberts was likely aware that he was in squishy territory–as is confirmed by the case law cited by Gillers, et al.

  93. 93
    Optimist says:

    Mr. Cole offers up an incorrect opinion on the laws and rules of ethics that apply here, which is not unusual for an amateur. Sorry Mr. Cole, but you must do your homework first.

    The potential ethics violation that has been brought up regarding Mr. Roberts is a serious one. The case type and clients are irrelevant. As a Judge, the very postion is required to maintain impartiality. The reasons for the rules is to insure that such is the case because the institution must be maintained, the individual is irrelevant. Anyone who is even casually familiar with judiciary positions is aware of this uncompromisable standard.

    What must occur, at this juncture, would be for an ethics panel review thereby allowing for the case to be presented to and decided upon by qualified and accountable people. That is the law, and that is what’s right.

  94. 94
    Geek, Esq. says:

    What’s really interesting is the inevitable motion for reversal from opposing counsel. I wonder if Roberts will recuse himself from hearing that case, since he’ll be sitting on the SCOTUS by then.

  95. 95
    Mike S says:

    Mind boggling.

    1) Judge Roberts has a major case before him with a direct impact on the President.

    2) Judge Roberts is called into the White House to discuss the possibility that he may be nominated to the highest court n the land. A job that I would think most lawyers would practcally kill for yet I can’t recall hearing his name bandied about at all.

    3) Judge Robets rules in favor of President Bush.

    4) Judge Roberts is nominated for the highest court in the land.

    That is not just an “appearence of conflict,” that is a conflict.

  96. 96
  97. 97
    Geek, Esq. says:

    Ah.

    The standard is reasonableness, but I think it’s really absurd to say that a reasonable person couldn’t see a conflict there.

    What a lot of people are missing was that Bush was an actual party in that case, and that it involved Presidential power–this isn’t your standard drug bust or wire fraud case.

    No one’s arguing that Roberts let himself be swayed by the job interviewing process–that’s really unprovable anyways.

    However, he demonstrated poor judgment in treading on such treacherous ground.

  98. 98
    Joe Albanese says:

    John continues with his embarassing posts:

    I think the appearance of impropriety is something that is being misused here, because no one is alleging he actually voted one way on a case in order to secure a seat.

    Ugh…. so let me get this straight John, there is only an “appearance of impropriety” AFTER someone alleges that there is a conflict of interest? lol… John, give it up, you are embarassing yourself digging in deeper and deeper. Where is my damn magnifying glass.

  99. 99
    Optimist says:

    The Geek, Esq. is absolutely correct, as stated in my first post. The appearence of inpropriety is undeniable. Whether there was inpropriety is not of issue.

    Now, as to the political aspects of this, I am not in the position to analyze. Rather, my concern is for the court itself. The question that I would pose to Mr. Cole is that if he can step back and be truly objective, leaving the political behind, and look at the situation, does he still feel that the relationship between the judge and the defendant, who also is considering the judge for appointment to a position that will greatly increase his standing and career, is still one clearly without the possibility of impropriety?

  100. 100
    Biff says:

    Mike S really hit the nail on the head here. Arguing that there’s an “appearance” of a conflict of interest, not an “actual” conflict, is a distinction without a difference.

    There is a conflict. Whether Roberts let the conflict affect his decision, we don’t (and maybe can’t) know. We’ll assume not, but that the issue is there at all was cause for him to recuse himself. The issue didn’t come into existence when ThinkProgress posted about it.

  101. 101
    ppGaz says:

    Arguing that there’s an “appearance” of a conflict of interest, not an “actual” conflict, is a distinction without a difference.

    That depends on whether the “appearance” is real, or imagined.

    I think that further examination of the facts in this situation will reveal that the “appearance” is imagined. I think that the decision in question had already been made before the other matter came up.

    If I am right about that, then John has been right throughout this whole thread.

  102. 102
    Mike S says:

    I think that further examination of the facts in this situation will reveal that the “appearance” is imagined. I think that the decision in question had already been made before the other matter came up.

    Which decision? The verdict or the nom? I have no idea where you would get either conclusion.

    Look. The problem isn’t the day of the decision, at least for me, it’s the fact that he was being interviewed long before it. It’s not as if he had one interview and that was it. That’s not how it works. They had been searching for a nom for some time before that and he most definately met with them more than once.

    That is the conflict. I am simply asounded that people would think otherwise.

  103. 103
    ppGaz says:

    That is the conflict. I am simply asounded that people would think otherwise.

    Well, I doubt that there’s a conflict. I detest the Spud Government as much as anybody, but I just don’t see any smoke here. “They” would have to have known that this decision was forthcoming and have known that he would decide it a certain way in order to have been influenced in their decision. Short of an explicit quid pro quo, I don’t see how there’s a problem here …. and there is no way that I am buying that Roberts participated in such a swap.

    No offense, but I’m not taking the heated complaints of some bloggers as sufficient to find a conflict here. I am going to need to see the complaints of experts who know the facts. Barring those, and I do not expect those to be forthcoming, I see this as a tropical depression in a dollhouse teapot.

  104. 104
    Joe Albanese says:

    John let me see if I can explain it to you. And to do that lets take out the particular individuals in this case. No Judge Roberts. No President Bush. You seem to be getting hung up on whether or not there is an accusation that Roberts had done anything wrong. So we have ANY judge sitting on a case with ANY defendant. Now in my hypothetical the defendant happens to be in a position to reward the judge. (potential employer).

    Now whether or not the judge rules in favor of the defendant in order to better his chances to get the job or NOT he can REASONALBLY be deemed to have a conflict of interest. Someone COULD, rightly or wrongly, make the argument that the judge ruled for the defendant because he wanted the job. It makes no difference if he did or did not the point is that he was in a position to do so. And equally obvious is that there is no way to prove it one way or the other. The judge must recuse himself to avoid the appearance that his ruling was compromised as a result of the beneficial relationship the defendant has with him. He must recuse himself to ensure confidence in the ruling. It is for the benefit of the court.

  105. 105
    Biff says:

    Well, I doubt that there’s a conflict.

    I think maybe the disconnect here between John, ppGaz, and the rest of us is due to a difference in terms. ppGaz, I think you’re defining “conflict of interest” as “actual corruption.” Is that right?

  106. 106
    ppGaz says:

    ppGaz, I think you’re defining “conflict of interest” as “actual corruption.” Is that right?

    I don’t think you can separate those. If I am the judge, and you are the prospective employer, how is there a conflict unless two things happen: One, I decide in your favor because I want the job, and two, you know that I did and choose me as the other half of the “deal”. Without both, my decision can have no effect on your decision, can it? If the corruption does not exist, where’s the conflict? I’m under no obligation to decide in your favor, and even if I did, you wouldn’t know that I did.

    A conflict of interest only exists if my interest in the job does in fact conflict with your adversary’s position in the decision. That doesn’t happen just because of the circumstances, that can only happen if we make some sort of corrupt agreement. Otherwise, you are blind to my decision, and I am blind to any favoritism toward you. No conflict. Eh?

    Again, this is all hypothetical as far as I am concerned. I don’t know enough about the facts to go any deeper.

    But based on what I know of Roberts, the idea that a deal — even an implied deal — was made here, just doesn’t add up. It’s nonsensical. Not even the Spuds are dumb enough to get into that trouble.

  107. 107
    Mike S says:

    “They” would have to have known that this decision was forthcoming and have known that he would decide it a certain way in order to have been influenced in their decision.

    It was before him. A decision was forthcoming. So here is where the conflict arises.

    He knows that the President wants a specific ruling. He knows that he is being considered for the position. Any reasonable person would have to believe that ruling against the person considering you for the job would be less inclined to nominate you. It’s as simple as 1234.

    1) Case.
    2) Interview.
    3) Ruling.
    4) Nomination.

    Would he have ruled against the President had he not been interviewed? I don’t know. Would he have been nominated if he had ruled against the President? Most likely not.

  108. 108
    Biff says:

    Ok, that explains it then. Those of us on the other side of this issue are using a different meaning of conflict of interest.

    That doesn’t happen just because of the circumstances, that can only happen if we make some sort of corrupt agreement.

    No, that’s not right. Bush did not need to literally say to Roberts, “decide in my favor”. If Roberts felt that deciding against Bush would make Bush think less of him, that could influence his thinking on the case, consciously or not. That’s the common meaning of “conflict of interest”.

  109. 109
    Mike S says:

    One, I decide in your favor because I want the job, and two, you know that I did and choose me as the other half of the “deal”.

    That’s not necessary. Even if he did not get the job he would have ruled with the belief, hope, expectation or any other thing you want to call it that he was better positioned to get the job.

  110. 110
    PotVsKtl says:

    ppGaz, you still don’t get it. It’s not about whether a deal or an implied deal was made. It’s about whether a reasonable claim could be made that there is an appearance of a conflict of interest.

    Look at this picture:

    http://3quarksdaily.blogs.com/.....ake2_2.gif

    Does it appear to be moving? Yes.
    Can you prove it is not moving? Yes.
    Does that change the fact that it appears to be moving? No.

    You can’t change the definition of appearance. These rules are in place to avoid allegations of impropriety, not to stop impropriety from occurring. I don’t think this will or should stop Roberts from having a fair hearing but you simply can’t argue logically that no reasonable claim can be made that there is an appearance of a conflict of interest.

  111. 111
    jobiuspublius says:

    Everybody knows that if you oppose Dear Leader you get squashed and if you agree with him, you get promoted. There are plenty of examples of that. Roberts does not pass my smell test. This seems to follow the same pattern as Dear Leaders other interactions except that I don’t know what Dear Leader could do to Roberts except prevent his promotions. That’s as squishy as it gets for Roberts, I guess.

    I can see Roberts wiggling out of this if he can prove in writing that he has been wanting to make such a ruling since way back when. But, even then, the voters will have to buy into it or they will punish their congress critters. So, the hearts and minds campaign continues. Anything unsightly will be argued away with, “he did that in his capacity as a lawyer for so and so”.

  112. 112
    Joe Albanese says:

    ppGaz said:

    A conflict of interest only exists if my interest in the job does in fact conflict with your adversary’s position in the decision. That doesn’t happen just because of the circumstances, that can only happen if we make some sort of corrupt agreement. Otherwise, you are blind to my decision, and I am blind to any favoritism toward you. No conflict. Eh?

    Not according to this:

    In 1994, the U.S. Supreme Court held that “Disqualification is required if an objective observer would entertain reasonable questions about the judge’s impartiality.

    Courts have repeatedly held that positive proof of the partiality of a judge is not a requirement, only the appearance of partiality.

    States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985) (Section 455(a) “is directed against the appearance of partiality, whether or not the judge is actually biased.”)

    (“Section 455(a) of the Judicial Code, 28 U.S.C. §455(a), is not intended to protect litigants from actual bias in their judge but rather to promote public confidence in the impartiality of the judicial process.”).

  113. 113
    jobiuspublius says:

    OK, PotVsKtl, what the hell is that. Hmm, free cyber lsd.

  114. 114
    ppGaz says:

    Courts have repeatedly held that positive proof of the partiality of a judge is not a requirement, only the appearance of partiality.

    Okay, I think we are into Third Normal Form navel-gazing here, but ….

    “Appearance of partiality” does not, to me, mean the same thing as “partiality is conceivable.” It means that there appeared to be partiality. I don’t see that here.

    But again, as I said in my first post to the thread, I’ll rely on persons with both expertise and the facts to tell me what they think happened here, if anything.

  115. 115
    Mike S says:

    ppGaz

    I don’t know what your profession is but let’s say that I, and only I, can give you the penultimate position of that profession. Then let’s say that you have to make a decision that directly effects me. So I call you into my office and tell you that I am thinking of putting you in the penultimate position, but this is a good deal of time before you make that decision that effects me.

    (Remember that the SC is not just a big time job. It is the ultimate job in law that gives you the ability to change the country. You will be be written about in history books. So imagine that your job is of similar status.)

    So now knowing that I may put you in that job, and knowing that I want a specific outcome in your decision, does that weigh in your decision? And even if you are a man of incredible ethics, can you not see that a lot of people would be swayed by the possibility of that penultimate job?

  116. 116
    ppGaz says:

    does that weigh in your decision?

    No.

    can you not see that a lot of people would be swayed by the possibility of that penultimate job?

    A lot of people can be bought for five dollars.

    Look, I see your point, but I think you are reading more into this thing than there is.

    The “penultimate job” to which you refer is really a job for the person who cannot be swayed. If I thought that I wanted that job, the last thing in the world I would do is let my self be swayed, or let somebody think they can sway me.

  117. 117
    PotVsKtl says:

    ppGaz, again, you’re missing the point. Judges are instructed to recuse themselves in any instance where any reasonable person might, under any circumstances, see a possiblity of impartiality. Are you honestly denying that that claim could, possibly, maybe, under any circumstance, be made here?

  118. 118
    ppGaz says:

    Are you honestly denying that that claim could, possibly, maybe, under any circumstance, be made here?

    I’m saying that if recusal was the right thing to do, it would have been done. It wasn’t done, and in the absence of evidence to the contrary, I conclude that it wasn’t necessary.

    Assertions by bloggers that it was, or might have been, necessary, are not convincing. What I hear is the baying of hounds who have heard a baying hound out there somewhere and, like hounds, are moved to howl.

    I am not moved. But if we can get the opinions of non-hounds who know the law and the facts, I might be.

  119. 119
    PotVsKtl says:

    How about assertions by lawyers and professors of law?

    http://www.slate.com/id/2124603/

  120. 120
    jobiuspublius says:

    What does all this mean for the case against Hamdan that Roberts was on?

  121. 121
    ppGaz says:

    Slate concludes:

    We do not cite these events to raise questions about Roberts’ fitness for the Supreme Court. In the rush of business, his oversight may be understandable. What is immediately at stake, however, is the appearance of justice in the Hamdan case and the proper resolution of an important legal question about the limits on presidential power. Although the procedural rules are murky, it may yet be possible for Judge Roberts to withdraw his vote retroactively. That would at least eliminate the precedential effect of the opinion on whether the Geneva Conventions grant minimum human rights to Hamdan and others in his position. Better yet, the Supreme Court can remove the opinion’s precedential effect by taking the Hamdan case and reversing it.

    1. Roberts SCOTUS appointment is not affected by this issue
    2. Hamdan’s lawyer may have an argument

    As I see it, that’s about it. If I were Hamdan, I’d want the argument made.

    If I am a betting man, I’ll wager that if Hamdan’s lawyer advances this argument, it will fail.

    I’d offer to make the wager here but I reckon John wouldn’t appreciate us using his blog as a gambling site.

  122. 122
    PotVsKtl says:

    The point is that a nominee for the SCOTUS should have known better. Period. I don’t think it’s a huge deal, but the argument simply can’t be made that by not recusing himself Roberts made the best decision. Far more pressing are his views on past SCOTUS rulings.

    I’m not arguing this because I feel it’s a nomination defeating slip-up, but because people (including Mr. Cole) ought to understand that it’s not a specious claim.

  123. 123
    PotVsKtl says:

    Sorry. That claim being that an argument could be reasonably made that Roberts ought to have recused himself.

  124. 124
    ppGaz says:

    The point is that a nominee for the SCOTUS should have known better.

    That statement is only true if John is wrong, and you are right.

    I’d wager that you are not right. My wager is based on an assumption that Roberts knew better what to do, than you do.

    Again, no offense. In the best of all possible worlds, you’d be my second choice for the SCOTUS seat ;-)

  125. 125
    Robert Chavez says:

    I think there is a lot of confusion here on what conflict of interest actually means. A lot of people are equating it with corruption–that’s not neccessarily so. Lawyers can engage in acts that are conflicts of interest, as long as both parties agree. It’s frowned upon, but you can do it. Most don’t because the hassle is too much. The best way to think about it is that a conflict of interest is a situation that could potentially, though not always, lead to a biased decision. In other words, it’s the gateway to an eensy bit of corruption. Not a corrupt decision–that’s another animal altogether.
    The standard that needs to be discussed though is the appearence of a conflict of interest–a far lower threshold. And the Professional Rules of Conduct are pretty unforgiving on this point–if any reasonable person could say that there might be a conflict of interest, there is the appearence of a conflict. It doesn’t matter if the conflict actually existed, it doesn’t matter if you acted completely impartially–if your actions could cause an eyebrow raise, you’re in violation of the PRC’s.

    Violating the PRC’s are not against the law, and most of the time, it’s worth a slap on the wrist, if that….but a judge is held to a higher standard, as well they should be.

    Even if Roberts decided against Bush in the case, he’d still have problems. A judge should never be meeting with a party like that. Ever. Again, I’m not saying there was a conflict. I don’t think there was one. But it’s a matter of that stupid eyebrow test, and Roberts, as a candidate for the highest court in the land, should have known better. I’d say a first year lawyer should know better. Heck, a third year law-student should know better. This was kid stuff and he screwed it up.

    As a side note, how many people here are actually lawyers? Me for one.

  126. 126
    bains says:

    John, saw that there were over a hundred comments, read the first twenty or so… Same people using a different topic as proxy for the same old argument.

    It seems to me that once you really started taking Bush and company to task, you’ve engendered new friends and new detractors. I’d think it has to be frustrating, stating your mind thusly… (any sympathy, or at least understanding, for what Sullivan went through?)

    no snark intended.

  127. 127
    jobiuspublius says:

    Posners opinion is centered on concern for PUBLIC opinion of the courts. Can we say spinning and polling?

    It’s kinda of messed up that Roberts would be able to hear this case again if it comes up on appeal to SCOTUS, or that he will be able to decide on any complaints against him regarding the Hamdan case. Is there any precendant for that? The whole process seems rigged or gammed. Worse still is not being able to know when it’s rigged or gammed and when it’s not. In my mind Roberts is becoming a liability for the courts. Clearly, he still has not severed his Reagan/Bush connections. He should go back to being their lawyer.

    The Supreme Court is concerned with the point of view of an objective observer. Who the hell is that? I guess each Supreme will decide that for themselves however they wish. Maybe they will argue that the public is not capable of being an objective observer here for lack of expertise.

    My head wants to explode. This is like picking a Pope. This fall will be pundtastic. The spinning and polling will only make the whole thing look fubar squared.

  128. 128
    PotVsKtl says:

    That statement is only true if John is wrong, and you are right.

    Right about what? Wrong about what? John’s statement was that the threshold for recusal is actual corruption. This is legally not the case. It’s fairly cut and dry,

  129. 129
    Mike S says:

    I’m saying that if recusal was the right thing to do, it would have been done. It wasn’t done, and in the absence of evidence to the contrary, I conclude that it wasn’t necessary

    My buisness is ethics intencive. Every three years I have to take classes on them. Sorry to say that you have very little understanding of them. Hopefully we’ll never have any dealings that require them.

    I’d also have to say that that is one of the most naive statements I have ever read.

  130. 130
    Bruce Moomaw says:

    Cole: “I read it to mean an observer should have actual reasons (IE reasonable questions- some doubt, etc.) that the judge is not being or will not be impartial.”

    My God, John, the question of how much freedom of action Bush has to treat terrorist suspects however he chooses is this administration’s single biggest legal concern by far right now — quite clearly because, as you yourself have noted, they know there are lots of flies under that garbage-can lid. It’s ENTIRELY reasonable to have serious doubts as to whether Roberts could be impartial in that particular case, knowing that he was having a Supreme Court seat dangled before him. Indeed, the question of how he’ll rule on Presidential wartime powers toward POWs once he’s on the Court is by far my biggest concern about him. He should have recused himself in that case; I have trouble even being uncertain about this.

  131. 131
    PotVsKtl says:

    It has to be said, anyone who is afraid of admitting the possiblity of an appearance of impropriety in this case is just carrying water or is unfamiliar with judicial ethical standards.

  132. 132
    Joe Albanese says:

    ppGaz said:

    “Appearance of partiality” does not, to me, mean the same thing as “partiality is conceivable.” It means that there appeared to be partiality. I don’t see that here.

    no… appearance of partiality does NOT mean that there APPEARED to be partiality but that the relative positions of the judge and defendant put them in a POSITION where there COULD be partiality by the nature of the situation. Really, at this point, after posting what the courts have said in plain english, this is not about legal matters but about the lack of reading comprehension skills. How else do you read this and still say what ppGaz says?

    (“Section 455(a) of the Judicial Code, 28 U.S.C. §455(a), is not intended to protect litigants from actual bias in their judge but rather to promote public confidence in the impartiality of the judicial process.”).

    .

  133. 133
    ppGaz says:

    I’d also have to say that that is one of the most naive statements I have ever read.

    Oh, I doubt that.

    What you guys are asking me to do, basically, is choose between the judgement of Roberts, and your judgement.

    After a number of years dealing with people on the Internet, let’s just say, it’s my money, and I’ll place my own bet, thank you very much.

    I’m betting on Roberts here. If we were in a bar, my money would be up on the bar now. You guys seem eager to take the action. Good for you. I don’t lose often, but it has happened.

    As for carrying water? Heh. There aren’t many posters here who have less allegiance to the Potatohead Government than I do. This has more to do with smelling a blgosphere minor feeding frenzy, than with politics.

    You guys might be right, but my mad money is on Roberts.

    Now, let the hearings begin.

  134. 134
    Joe Albanese says:

    ppGaz said:

    I’m saying that if recusal was the right thing to do, it would have been done.

    Ahhhh…. interesting way of looking at things. We can’t say Roberts did anything wrong because… well…. he just won’t do anything wrong. Your blind faith is quite endearing.

    The whole purpose of judges recusing themselves when there is an appearance of conflict of interest is to avoid this whold debate were having. The very fact that this is being discussed is proof that their is an “appearnace” of conflict of interest. And the consequences of a judge not removing themselves in such instances is that it invites questions into the integrity of the ruling (wheter of not anything was done corruptly or wrong). Making this point is the Wall Street Journal (no left wing rag):

    But in the end, what happens may not be up to Cmdr. Swift or anyone directly involved in either the Hamdan case or the Roberts confirmation. The ruling Judge Roberts joined spells trouble, by implication, for claims brought by dozens of other Guantanamo prisoners being held without trial. Attorneys for those prisoners, eager to dislodge an unhelpful precedent, could raise questions about the validity of a ruling Judge Roberts joined.

    A recusal is a prophylactic act – to avoid the very need to have this thread. Even if the ruling stands as ppGaz suggests that still doesn’t mean Roberts shouldn’t have recused himself.

  135. 135
    ppGaz says:

    Your blind faith is quite endearing.

    I swear to my velvet Jesus, is there an Internet or blogosphere poster anywhere who doesn’t pull that kind of crap?

    Blind faith? I just laid it out for you not 20 minutes ago:

    I am choosing between the judgement of posters, and the judgement of Roberts, and placing a bet. I am betting on Roberts. That isn’t “blind faith.” It’s an informed choice.

    Blind faith is what I place in my cardiologist. Nobody in government gets it from me, and even less than nobody in the blogosphere gets it from me.

    Please refer to my first post to this thread. I said this:

    Listen, I don’t know the arcana of jurisprudence well enough to know whether there is or is not an ethics issue here, and I strongly suspect that noone around here does either.

    However, there such a thing as “the appearance of impropriety” and it is not imaginary. Does this thing cross that line? My hunch is that it doesn’t, but again, I don’t know, I would leave it to judges and lawyers to tell me.

    To revise and extend, I meant “judges and lawyers who don’t post to the blogosphere all day.”

    I have not changed my mind, I have seen nothing to convince me to change my mind, yes I read the stupid Slate article, I even posted its final paragraph above and commented on it, and no offense to all of you, but I don’t consider you qualified to pass judgement in this matter.

    Even if Hamdan makes the argument suggested above, and wins, I still don’t agree with you. Roberts will be confirmed, the public confidence in the courts will be little affected, and life will go on. When Hamdan’s new argument reaches the Supreme Court, Roberts will recuse himself.

    Meanwhile there’s a war on, and you all are wasting a lot of energy on a point that may never amount to anything.

  136. 136
    ppGaz says:

    John, I take back every rotten thing I’ve said to you lately.

    Arguing with these people is like trying to teach Scrabble to cats. They just keep chasing the tiles around the room.

    After reading some stuff on the Internet, they’ve appointed themselves SCOTUS-level justices, and handed down a decision without even hearing arguments in the case.

    To convince me, or whatever, they pointed me to a Slate article, and they don’t even represent the very view stated in the concluding paragraph to that article. They are essentially arguing against their own key piece of evidence.

    No wonder you’re in a cranky mood all the frigging time.

  137. 137
    jobiuspublius says:

    Now I understand the significance of the Scalia/Cheney quail hunt. It was a signal that the Delay congress will not impeach one of their own.

    ppGaz, I cannot share your point of view. First, you are betting and I am trying to calculate what will and what should happen.

    It seems to me that you are doing a little more than betting, you are also supporting, with your opinion, who you percieve to be the inevitable winner. You have no concern with the law, but, only with being on the winning side of politics no matter how illegal it may be.

    What I don’t recall you acknowledging is that Posner’s ruling concerns the *publics* opinion, not the opinion of judges and lawyers as you expect, and that Posner’s ruling has been supported by judges.

    If the public’s confidence in the courts is little affected it may be because it already has none. That’s no reason to ignore the law.

    What is being ignored here is that the corruption that has infested the Legislative and Executive branches is threatening to engulf the Judicial branch.

    If a big ass asteroid hits the earth, life will go on. To bad, it won’t be ours. But, the roachs can manage just fine without us. Are we comfortable now?

  138. 138
    Mike S says:

    To convince me, or whatever, they pointed me to a Slate article, and they don’t even represent the very view stated in the concluding paragraph to that article. They are essentially arguing against their own key piece of evidence.

    Did I p? Or did I argue ethics 101. Did I offer examples of what I’m talking about?

    And P? Whcih is worse. Someone arguing their point like I have, or someone arguing their point by saying simply that they are right just because?

  139. 139
    ppGaz says:

    You have no concern with the law, but, only with being on the winning side of politics no matter how illegal it may be.

    Hey, fuck you, asshole. You have no basis for saying that, and I reject your entire argument out of hand for no other reason than it comes out of your mouth.

    A rank argument in a minor blog is not “the law.” We are not practicing “the law” here. You are not the law. You are nobody, you don’t even have a real name.

    Don’t frigging talk to me that way, pal.

  140. 140
    ppGaz says:

    Did I p? Or did I argue ethics 101. Did I offer examples of what I’m talking about?

    Did you reach the same conclusion as the Slate writer?

    If you did, then this entire argument is a waste of time.

    If you didn’t, then you are arguing against your own witness.

  141. 141
    ppGaz says:

    someone arguing their point by saying simply that they are right just because?

    And a hearty “fuck you very much” to you too, Mike,

    I am not saying I am right “just because.” I am saying that I choose not to rely on your judgement in this matter. I have no reason to rely on it, and plenty of reason not to. I am making an informed choice, and it’s mine to make. Yours is yours to make. That’s it, in its entirety. Try not to puff yourself up into some almighty judge and jury and try the case and sentence the defendant before you’ve even seen the briefs. You know, act like someone with self-announced respect for “the law” might act.

  142. 142
    jobiuspublius says:

    ROFLMAO, ppGaz, you ole’ bugger you. OK, I spoke too harshly and broadly about you. I exagerated when I accused you of having *no* concern for the law. I appologize. What I should have keep my accusation confined to the laws I saw quoted here, which are the ones I had in mind and the one I think you are ignoring. I goofed. I’m sorry.

    Hey, anybody seen Abe Fortus around lately? What ever happened to him? ;)

  143. 143
    jobiuspublius says:

    Doh! Bad bad sentance, correction: I should have kept my criticism of your point of view confined to the laws I saw quoted here, which are the ones I had in mind and the ones I think your view ignores. Once again, my appologizes.

  144. 144
    CJ says:

    ppgaz:

    I am choosing between the judgement of posters, and the judgement of Roberts, and placing a bet. I am betting on Roberts. That isn’t “blind faith.” It’s an informed choice.

    The problem here is that you are incorrect in assuming that Roberts’ judgement wrt to whether there was an actual conflict of interest is at all germane to the question of whether there exists an “appearance” of a conflict of interest. Your informed choice is based on a flawed premise. The fact is that the bloggers, at least some of them being reasonable persons, believe that this is a situation in which Roberts’ “impartiality might reasonably be questioned.” That fact alone means that Roberts should have recused himself. If you don’t agree with the law, fine. But that is the law and it is very clear cut. The standard is ridiculously low for a reason and this a perfect example of why it is set so low. It has nothing to do with whether there was any actual influence peddling or other skulduggery going on.

    The fact that Roberts didn’t feel that there would be any appearance of impropriety here is also points up why the law doesn’t use the judge’s own beliefs as the standard. All kinds of stuff that seems perfectly fine to a judge may bring the impartiality of the judiciary into question. The Cheney duck hunt is another good example. The likelihood that Cheney influenced Scalia, who was likely going to find favorably for the administration anyway, is pretty low. But it gave the Supreme Court a black eye by suggesting that those with access could influence decisions, whether influence happened or not. The mere appearance of that type of conflict is treated the same (minus the jail sentences for the inolved parties) as an actual conflict/bad act because the appearance of impropriety kills the credibility of the court.

    You don’t think there was an actual conflict. I agree. You feel that Roberts judgement of whether there is an appearance of partiality is sufficient. There we party company as Roberts is not the person that matters in the eyes of the law. I am (presuming I’m reasonable). If you don’t think that one is being reasonable, try making a case that is drawn to that issue rather than trying to argue that 1) there is no actual conflict and/or 2) Roberts is an expert and therefore his judgement should be followed. Neither of those arguments is operative in this case and if you re-read 28 USC sec 455 (1) carefully, you will understand why you are being accused of being wrong headed.

    CJ

  145. 145
    ppGaz says:

    ROFLMAO, ppGaz, you ole’ bugger you. OK, I spoke too harshly and broadly about you. I exagerated when I accused you of having no concern for the law. I appologize. What I should have keep my accusation confined to the laws I saw quoted here, which are the ones I had in mind and the one I think you are ignoring. I goofed. I’m sorry.

    We all get carried away from time to time.

    This is an interesting argument. It strikes me how easy it is to fall in love with one’s position in this medium.

    My position on this is the one I took from the get-go: Wait and see on the “ethics violation,” and get on with the confirmation, because this story isn’t going to affect that process much. It’s easy to find out if I am right or not, just wait 90 days or so and we’ll all know.

    If John would authorize gambling here, I’d get some action and possibly pay for the magnaflow exhaust I crave for my Mustang. Or, not. That’s the fun part.

    PS — I apologize for the FY but sometimes that’s the easiest way to get to the end of one of these arguments.

  146. 146
    Joe Albanese says:

    The great and wise PeePeeGaz said:

    John, I take back every rotten thing I’ve said to you lately.

    Arguing with these people is like trying to teach Scrabble to cats. They just keep chasing the tiles around the room.

    And who the hell are you? Arguing with you is like teaching quantum physics to a block of wood. Your moronic argument is that you are “betting” that the case is not overrulled. Who is saying that it will be? That is not the issue we are discussing here and any court could rightly say that there would be no reason to overturn a unanimous decision because of the Roberts situation. So you are setting up a Straw man. And even if they don’t overthrow the case that still doesn’t mean that Robert’s shouldn’t have recused himself. That would not be vindication einstein. The purpose of recusing oneself is to AVOID even having to revisit the whole issue are re-litigate. God you are dense.

    PeePee continues in his condescending ways:

    Meanwhile there’s a war on, and you all are wasting a lot of energy on a point that may never amount to anything.

    So when we post we are wasting energy and when you post what? Educating us all I presume? lol, what a blowhard.

    More nonsense from resident scold:

    Blind faith? I just laid it out for you not 20 minutes ago:

    I am choosing between the judgement of posters, and the judgement of Roberts, and placing a bet. I am betting on Roberts. That isn’t “blind faith.” It’s an informed choice.

    Really? and Roberts has expressed his opinion on this? Since you are a betting man, how much you want to bet then when the hearings come around he will admit that “on reflection” it would have been better if he had recused himself. Wanna bet?

  147. 147
    Mike S says:

    Did I hurt your feelings P?

    Go back through my comments and find my use of Slate. Keep looking. Look a little more.

    Find it? Didn’t think so.

    My argument is simple. A judge should not decide a case when one side can give him a personal benefit while the other cannot. Roberts Knew that one decision would give him a better shot at a job that he was well aware that he was in line for. It’s a simple concept and one that you learn on the first day of your ethics class.

  148. 148
    ppGaz says:

    The problem here is that you are incorrect in assuming that Roberts’ judgement wrt to whether there was an actual conflict of interest is at all germane to the question of whether there exists an “appearance” of a conflict of interest. Your informed choice is based on a flawed premise.

    You might be talking about the wrong premise. My premise is that I have two apparent views here to choose from. One is Roberts’ own view, which by the way, we haven’t heard. The other is the view of blogflies like us who think they have discovered a meal when maybe all they have discovered is a Big Mac wrapper, if you get my drift.

    Not being an expert on the subject, I said (what seems like a week ago but was only) yesterday, let’s wait and see on the ethics thing. I am going to need some, uh, non-blogfly opinions.

    The Slate writer gave even more ground to Roberts than I did, and essentially concluded only that Hamdan might have an argument. I agree with that writer.

    I’m not sure what the driving imperative is behind your (“your” being general here) arguments. What is it that you are looking for?

  149. 149
    ppGaz says:

    Your moronic argument is that you are “betting” that the case is not overrulled.

    Correct, that is my moronic argument. If your charcterization were as good as your summary, I’d be more pleased.

    So when we post we are wasting energy and when you post what?

    Basically, what I said to my Post One to the thread: Let’s wait and see. Pretty radical, I know, but when you are in a hurry to have a kangaroo trial and string up the hapless defendant, as you are, then restraint is not an option.

    More nonsense from resident scold:

    Wow, you really are a fucking asshole! I’m a scold because I wish to repeat what I said a few minutes ago?

    In that case, you are a fucking mental patient who is exhibiting pressured speech and several other mental illness markers. I think you are a danger to yourself and others at this point.

    Really? and Roberts has expressed his opinion on this? Since you are a betting man, how much you want to bet then when the hearings come around he will admit that “on reflection” it would have been better if he had recused himself. Wanna bet?

    No, you loudmouth dork. He hasn’t, which is one of many reasons why it’s premature to try this case and execute the defendant.

    Do I wanna bet? Uh, have you been reading my posts? I’m itching to bet. I just don’t think John would approve of us doing real gambling in here. I always put my money where my mouth is, sir. I am not offering a bet but cough sneeze ahem hundredollars cough excuse me I could be talked into it quite easily.

  150. 150
    ppGaz says:

    Find it? Didn’t think so.

    You aren’t the Slate pusher? Then I remove you from the Slate bash list.

    My bad.

  151. 151
    Mike S says:

    You aren’t the Slate pusher? Then I remove you from the Slate bash list.

    Nope. And no worries. We’ll agree to disagree.

  152. 152
    ppGaz says:

    Nope. And no worries. We’ll agree to disagree.

    Sounds good. The agree part, I mean.

    I wish John would chime in and give us permission to wager. I still think I can make some money here and get that exhaust system.

    :-)

  153. 153
    ppGaz says:

    Or, to save time, you could …..

    Just send me one of these

  154. 154
    Joe Albanese says:

    PeePee:

    No, you loudmouth dork. He hasn’t, which is one of many reasons why it’s premature to try this case and execute the defendant.

    Out of the 150 some odd posts on here how many are trying to EXECUTE the defendant? As a matter of fact, most on here, myself included, do not think this should present much of a problem for Roberts Confirmation, nor should it, I might add. And, as far as I recall, no one on here is suggesting that the case that he ruled on will be overturned. So once again you set up straw men arguments to knock down. Does that make you feel powerful PeePee?

    What we are doing here is discussing the concept of Appearance of Conflict of Interest as it applies to the SCOTUS nominee. Isn’t that what blogs do? Are we to not discuss any issue unti it is “decided” by some relevant judicial body? God PP you are really insufferable.

    Oh, and btw when you agreed with John’s stated disgust with some of the posting wasn’t he specifically referring to YOU? Thats how I recall it. Nice ju jitzu move there PP.

  155. 155
    ppGaz says:

    What we are doing here is discussing the concept of Appearance of Conflict

    That’s what you’re doing? Well then, stop following me around, and go discuss it.

    Are we to not discuss any issue unti it is “decided” by some relevant judicial body?

    Did I say that? I said, I’m waiting to see. You can do whatever the hell you want.

    God PP you are really insufferable.

    Hang in there, buddy. I feel your pain.

    Oh, and btw when you agreed with John’s stated disgust with some of the posting wasn’t he specifically referring to YOU? Thats how I recall it.

    I have no idea. Don’t care.

  156. 156
    ppGaz says:

    PeePee:

    Seems once in a while I have to do this:

    ppGaz is a rough combination of initials, and a state abbreviation.

    Make fun of it at your own peril.

  157. 157
    Joe Albanese says:

    PeePee:

    ppGaz is a rough combination of initials, and a state abbreviation.
    Make fun of it at your own peril.

    I’m quaking in my boots.

  158. 158
    ppGaz says:

    I’m quaking in my boots.

    Whatever you say, asshole.

  159. 159
    Mike S says:

    Enough! We’re not changing each others minds.

  160. 160
    ppGaz says:

    Enough! We’re not changing each others minds.

    True enough, but just for the record, I have never set out to change any mind other than my own. It’s hard enough to do that, much less try to change somebody else’s.

    Joe will change his mind right after his next round of electroshock treatments.

  161. 161
    Steve says:

    As a lawyer who is the go-to guy for ethics questions at my firm, I think it is pretty obvious that there is a pretty good argument that Roberts should have recused himself. You are meeting with the Executive Branch about a possible promotion at the same time you’re hearing a case regarding a very important Executive Branch policy.

    That’s not to say that the judgment will be reversed, that this will be some huge issue that will overwhelm the confirmation hearings, or that Roberts is an amoral bastard. I do think he probably made the wrong judgment call and that’s about the end of it.

    The WaPo article is amusing in that they quote the White House saying there was absolutely no conflict of interest. Did the reporter even realize the idiocy of asking the victorious party in a lawsuit whether he feels the judge had a conflict of interest?

    Erick E. really lost a lot of my respect with his wildly partisan response to this thread. It’s one thing to have a difference of opinion, but a lawyer should not put partisanship over accurately stating the law.

  162. 162
    Cpl. Dwayne Hicks says:

    Joe Albanese makes a great suggestion, and a good call. Roberts is the defendant and he’s obviously guilty. I vote for the death in the penalty phase of the deliberations.

    [B]ut a lawyer should not put partisanship over accurately stating the law.

    IOKIYAR

    And these same armchair shylocks are are the same keyboard commandos mishandling a war. Think of another George. George Armstrong Custer. Although Custer was spared the ignominy of having to stand before a firing squad by actually LEADING his men into battle.

    Let the winguts secede, dust off, and nuke them from orbit. It’s the only way to be sure.

  163. 163
    Laszlo Panaflex says:

    Cole: “You recuse yourself to avoid a conflict of interests. Not the appearance of a conflict of interest.”

    Are you at all familiar with the Federal Code of Conduct for the Judiciary? You make numerous conclusions as to what conflicts are above, yet you make no reference to the code that directly contradicts you:
    http://www.uscourts.gov/guide/vol2/ch1.html

    For instance,

    “A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.”
    Commentary, Canon 2A

    The appearance of impropriety, whether actual or not, is dispositive.

    “Canon 3 requires a judge to disqualify in any proceeding in which the judge has a financial interest, however small; Canon 5 requires a judge to refrain from engaging in business and from financial activities that might interfere with the impartial performance of the judge’s judicial duties…”
    Commentary, Canon 5C

    If Roberts was talking to a company about a job offer at the same time as the company was involved as a party before his court, you bet that would be a conflict. It is no different simply because it is the government rather than a private company involved.

  164. 164
    Kenneth Fair says:

    Judges are held to an ethical standard that prohibits actions both actually improper and appearing to be improper. Canon 2 of the ABA’s Canons of Judicial Conduct (CJC) requires a judge to “avoid impropriety and the appearance of impropriety in all of the judge’s activities.” The official commentary to this canon continues: “The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.” This is because “[p]ublic confidence in the judiciary is eroded by irresponsible or improper conduct by judges.”

    Most jurisdictions have adopted the CJC as the ethical standards by which judges are measured. For instance, the Code of Conduct for United States Judges, which governs the conduct for all federal judges, including Judge Roberts, is based on the CJC.

    I don’t know whether Judge Roberts violated Canon 2 because I don’t know the details of this situation. But I do think Mr. Cole is incorrect to say that a judge cannot violate ethical standards through the appearance of impropriety.

  165. 165
    Joe Albanese says:

    I think it has been well established that John Cole was completely wrong on this one. Its not the first time, nor, I imagine, will it be the last.

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