Supreme Court Debates Judicial Ethics and Rules on Standing, Refugees

Two veterans of the Supreme Court bar -- Theodore Olson of Gibson, Dunn & Crutcher, and Mayer Brown's Andrew Frey -- squared off this morning in arguments over the impact of large campaign donations on candidates for state judgeships, and when those donations should prompt a judge to recuse in cases involving a donor. They appeared in Caperton v. Massey, a West Virginia case in which a coal company executive put more than $3 million into the campaign for a state Supreme Court candidate who won and then cast a deciding vote that handed victory to the coal company. Olson, arguing in favor of setting recusal standards was in good form, while Frey spent much of his time on the defensive, explaining why recusal should not be a constitutional due process issue. We previewed the lawyering in the case here last month.

The argument veered close to home for some justices at times, with Justice Antonin Scalia wondering aloud whether a recusal standard for elected judges might also affect appointed judges like himself. Noting that he was appointed to the Supreme Court by President Ronald Reagan (in 1986) Scalia said he might be deemed to have the same level of gratitude to Reagan as the West Virginia judge might have to his benefactor. "[Reagan] had a lot of issues coming before me." Olson answered that with life tenure, federal judges would not be viewed as beholden to their appointing president in the same way that an elected judge would be to a large donor.

Also on Tuesday, the high court issued two rulings. In Negusie v. United States, Frey's partner at Mayer Brown, Andrew Pincus, won a rare immigration law victory, assisted by Yale Law School's Supreme Court Clinic. By a 6-3 vote, the Court said the Board of Immigration Appeals misread Supreme Court precedent in ruling that Daniel Negusie, an Eritrean national, should be deported. 

In the other ruling, Summers v. Earth Island Institute, Scalia wrote for a 5-4 majority that an environmental group did not have standing to challenge a Forest Service regulation allowing sale of timber on fire-damaged federal land, once the sale had been halted.  More about today's Court action later at legaltimes.com.