Scalia Memorandum on the Question

This is a reasonable element of consideration to be pointed out, because many of the people holding public office and performing public service in the District of Columbia are lawyers, who have varying and extensive careers in law. By reason of this, they do reasonably come together and throughout the course of their legal education and careers become friends and, or, acquaintances. They are often, by virtue of their profession and by virtue of the affluence that often accompanies the rise to power, found to be in the same social circles in support of charity, or in the pursuit of continuing legal education, areas of interest, and, yes, recreationally too.

To abandon these relationships because one has been appointed to a particular office is an unreasonable request, and a practice that would actually cause the relationship to receive an unnecessarily amount of scrutiny. Nor is it any secret, as Justice Scalia points out, “Many Justices have reached this Court precisely because they were friends of the incumbent President or other senior officials – and from the earliest days to modern times Justices have had close personal relationships with the President or other officers of the Executive (p. 5).”

Case Study

In the case study provided, recusal is the appropriate course of action because: 1) there is a reasonable question of impartiality based on the fact that the voting machines have been seized, and the New York Court of Appeals has upheld results in favor of the challenger. In this case, the relationship, which is one in which Justices Smith and Jones have close and personal relationships with the incumbent, can reasonably be questioned should the decision be against supporting the lower Courts decision.

By virtue of the fact that the incumbent is challenging the lower Courts decision, or the results of the challenger to win the election, and because, presumably, based on the scenario, the Justices were appointed to their bench on the Supreme Court by the incumbent, then it could very reasonably call into question the impartiality of Justice Smith and Jones.

In this case, the official action by the officer in her role as a government official, in filing a petition for review of the New York Court of Appeals decision in support of the challenger, is in fact an official act meeting the criteria for recusal as cited by Justice Scalia in his memorandum.

Also, as Justice Scalia pointed out, the recusal of one Justice puts the case at jeopardy because it creates the potential for a tie, and this would not serve justice. However, in this case study, two Justices would be recusing themselves, leaving an odd number presiding and resolving the risk to justice by virtue of the fact that there could not be a tie in the decision rendered.

So while the case study contains both elements that Justice Scalia cites as being elements for recusal, the recusal of both Justices Smith and Jones leaves intact the integrity of the intended majority in the decision making process.

The two elements, as Justice Scalia cited them, specifically and unquestionably apply to the case study as elements in support of recusal. The case study specifically meets not just the first, and probably more obscure of the two criteria, but specifically and wholly the second criteria because the action of appealing the NY Court of Appeals decision is in fact an action by, taken by, the incumbent whose relationship with both Justices meet the first element.

The conditions of the case study are much like those in the case in which Justice Scalia did in fact recuse himself. See Elk Grove Unified School.

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