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August 21, 2017


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Deep State Special Legal Counsel

I see their point and it is valid...It isn't about Justice Gorsuch's impartiality, but perception and symbol. We don't hold court in a Winnebago or a Home Depot shed festooned with video gaming machines. Imagine for a moment if Justice Kagan were to give a talk on Global Climate Change at Standing Rock or federalism at the Malheur National Wildlife Refuge. There would be a hue and cry from the would be deafening....


"Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities - An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge's honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired."

Code of Conduct for United States Judges

Which means Steve that it's not a question of whether personally you think Gorsuch's conduct is improper, but rather whether you think Wydra, Gillers and Rhodes are "unreasonable minds." So, why is their argument unreasonable?

Steve Lubet

It takes more than criticism from several reasonable people to make something an impropriety, Mack. Or to put it another way, the burden is on those who call it improper to explain why their views are correct in concluding that Justice Gorsuch's "honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired." It isn't a question of whether Gillers and Rhode have reasonable minds (they do, of course), but rather whether they have made a case against Gorsuch's honest, integrity, or fitness on the basis of his hotel speech.

I think they are wrong for the reasons stated in my post.


MacK, because the above mentioned professors are political activists? Now if someone can show me that one of them was publicly critical of Justice Ginsberg when she went off the reservation during the election season when she talked about Trump, I'd reconsider. But since Gorsuch wasn't the one who chose the venue at which the conference was held, I'd encourage us to do less of these "appearance of impropriety" shots at our political opposites and focus on substantive issues.


And I answer that the Canon uses the expression "reasonable minds" and "the appearance of impropriety." It does not say that the judges impartiality be impaired, but that he/she should avoid activities that might give rise to that impression in the minds of reasonable people. It also does not prescribe all reasonable people, just some.

On its face, what canon means is that the church needs to be concerned about appearances as much as fact. So the basic question is why do you think it is unreasonable for someone to suggest that Gorsuch's behaviour presents the appearance of impropriety, of prejudging for example the emoluments question.

It's not a question about your reasons for this, but rather a question of whether you can consider that someone might reasonably see Gorsuch as not impartial, as biased on an issues where there is a strong possibility he'll have to consider them. That the commentators regard Gorsuch as Trump's hand chosen judge makes things if anything worse.

Tamara Piety

Steve - You write that "but his continuing ownership of the hotel does not violate any law." But isn't this precisely the question the emoluments clause litigation raises, whether his ownership of the hotel, and perhaps more crucially, his refusal to distance himself from the management of it violates a law, to wit, the Constitution? (I am not sure the operation question is more or less crucial given that one option to improve public confidence, if he refused to divest, would be to more clearly distance himself from its operation; OTH, given that it is a business, not a passive investment, and that it is the sort of business that is so intimately associated with his personal brand that it is difficult to imagine that there is any meaningful way for him to distance himself from running it, perhaps this is the less crucial question than divestiture.) I suppose it depends on what you mean by " a law" and whether a case a first impression, even if it is decided against him, announces a principle so clearly established that it can be said in advance of the decision to be "illegal." But on that score it is relevant that this represents a breach of previous practice or understanding of the conflict of interest standards such that it hardly needed to be explicitly forbidden: it was understood be all to be forbidden. No one needed to say it because it was the "previous conflict of interest" standard. It is interesting how Trump's ignorance of those standards (or perhaps it is just disdain for them) can translate into throwing the standards into doubt rather than casting doubt on the legitimacy of his presidency. Given his politics and his record, it seems like this is the sort of thing one might well wish to avoid if one expects that this very hotel is likely to be the subject of controversy in a case he will hear in the future, even though one assumes he had no role in choosing the venue. By starting with the "violating no law" you are assuming the fact to be proven.

Deep State Special Legal Counsel


Your comments are excellent. The language "appearance" of impropriety is what I was searching for.... Especially in this climate, particularly with this President and his tendency to undermine the Press and Judiciary, Article III actors should distance themselves from Article I entities.

Steve L.

You are right, Tamara. I should have said that it does not violate the conflict of interest statute, which does not apply to the president.

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