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Lubet’s Conflicting Views on Recusal



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A reader calls to my attention the fact that Prof. Steven Lubet’s remarks on Gonzales’s recusal obligations appear sharply at odds with the views that he expressed a year ago on the flap over Scalia’s duck hunt. The proposition that “Scalia ought to be the sole judge of his own impartiality” was “wrong,” Lubet declared, and under existing law there was “no good reason for the members of the Supreme Court to arrogate such power to themselves.” The same Lubet who worked himself into a lather over Scalia’s duck hunt (“the more we learn about his duck hunt, the worse it looks”) and emphasized that recusal questions are “serious matters for the United States Supreme Court, which depends on public confidence for its legitimacy,” now appears inattentive to, or blithely dismissive of, the far more serious recusal obligations that Gonzales would face.

By the way, in addition to the powerful opinion that Scalia issued explaining his non-recusal, did anyone notice that he ruled against the interests of the administration and Cheney in a case that was pending at the same time and that presumably was of far greater importance to them–the Hamdi case (which concerned the constitutional rights of a citizen enemy combatant)?



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