With his usual zeal, my friend Steve Vladeck energetically defends his support for the D.C. Circuit court’s decision mandating Judge Scott Silliman’s recusal in the military commission case involving Khalid Sheikh Mohammed (KSM) against my critique of that decision (which I outlined in an essay titled, “Is it in the nation’s best interests for the courts to chill the protected speech of law professors?”)

What Steve’s response doesn’t counter is the simple fact that the prohibitions the D.C. court relies upon applies to statements made by judges, not by law professors (who are not yet judges) – which Silliman was at the time of his comments in question. (In a 2010 media interview then Professor Silliman referred to KSM as one of the “major conspirators in the 9/11 attacks”, a statement that mainly just acknowledges what KSM had essentially admitted in a 2007 hearing). The relevant rules/statutes might have been written differently to capture statements made at any point in one’s lifetime, but they weren’t.

But most interestingly, Steve unintentionally makes my case when he says:

To be clear, I’ve long been an admirer of Judge Silliman’s. And even if I wasn’t, his office and his service would still deserve (and have) my respect. And because, like Charlie, I know him, I too have faith in his ability to be an impartial arbiter of the disputes before him, even appeals in the 9/11 trial. (Emphasis added)

Steve follows his conclusion that there is no actual bias in Silliman’s case with this claim: “recusal rules exist to eliminate even the prospect of impropriety.” But, that’s not really correct. Canon 2 of the Code of Conduct for United States Judges says that a “Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities.” It goes on to define “appearance of impropriety” as not an undifferentiated “prospect of impropriety” as Steve thinks, but rather as:

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.

In this case even the most superficial of inquires would have revealed a surfeit of people who would have said exactly what Steve said, that is, that they have “faith in [Silliman’s] ability to be an impartial arbiter of the disputes before him, even appeals in the 9/11 trial.” 

Moreover, any reasonable inquiry into the “relevant circumstances” would have to include a) that Silliman’s 2010 statements were little more than echoes of what KSM said about himself; b) that they were made by a law professor. (The differences between what one might say as a law professor versus a government lawyer/jurist are explored in my post, so please take a look); and c.) even though the statement in question was public, the Senate still confirmed Silliman as a federal judge at a point in time when it was known that KSM would face a military commission.  Where, as here, there is no actual bias, and the facts simply do not support a mandated recusal based on appearance of impropriety, the D.C., court’s opinion is plainly in error.

I was genuinely surprised that Steve is so dismissive of the importance of Senate confirmation, especially given the direct connection in this instance to national security.  Here we have a situation where the executive branch and the legislative branch assessed Silliman fit to be a judge in 2012 – notwithstanding the 2010 statements – and with full knowledge of the KSM was charged in 2008 for trial by military commission. I question, as a matter of separation of powers, the propriety of the judiciary second-guessing Silliman’s fitness under these particular circumstances.

It is the confirmation process the Constitution provides to sort out potentially disqualifying prior statements. In fact, that is how Justice Sonia Sotomayor’s “wise Latina woman” comment (made, incidentally, in an academic setting) was addressed and resolved. Ditto for Justice Hugo Black and his KKK connections and many others.

Steve thinks I am overstating the potential difficulty in finding qualified judges in the national security law community after the Silliman case. Steve claims, strangely in my view, that he can “think of dozens of leading national security law scholars and practitioners who, [he’s] willing to bet, have never publicly offered an opinion on the guilt or innocence of the 9/11 defendants.” Among other things, if we are talking about the appearance of impropriety as a judicial disqualifying factor, it would extend to much more that simply the 9/11 defendants guilt or innocence, but a whole panoply of topics related to the various cases.

My query then is this: Can Steve name even one dozen of the “dozens” of “leading national security law scholars” who have never made a statement about the 9/11 defendants or the associated military commissions in the last 16 years? It seems to me that if there are such people, it would be hard to imagine they would be especially good candidates for the U.S. Court of Military Commissions Review. Apart from wacky conspiracy theorists who deny the involvement of the 9/11 defendants in the attacks, do we really think there are many Americans of any station who don’t have views on 9/11 and the guilt of KSM (and others who have admitted their role), let alone “leading national security law scholars”?

Still, let’s take Steve’s claim at face value, and limit our inquiry to those who did “publicly” opine. Would we rather consider for a judicial appointment someone who is sly and cunning enough to conceal their views, or would we want people who are transparent and open about them? Moreover, if someone’s private views really do reflect an immutable bias, should they be given a pass? To what extant should a “reasonable inquiry” mandate that defense counsel in the exercise of due diligence delve into the private, pre-confirmation discussions of candidates for judgeships?

Nonpublic biases are, in a real way, more nefarious than public ones as the latter can be subject to pre-confirmation scrutiny as the former rarely can, so I don’t endorse Steve’s apparent willingness to give a pass to the purportedly “leading national security scholars” simply because they conceal their views from the public. Or is he saying that “leading national security scholars” have no views on 9/11, its perpetrators, or military commissions?

And let’s face it: We are not talking about views on just any criminal case. Rather, we are talking about America’s most infamous crime of the 21st century. Unlike Steve, I think the universe of “leading national security law scholars” who have no opinion about 9/11 and its perpetrators is an exceedingly small universe. (This is why I suggested that in these extraordinarily notorious and virtually one-of-kind 9/11 cases, there is room for application of the judicial “rule of necessity.”)

Steve suggests I am unaware of the Supreme Court justices’ conclusion that they are above the ethics rules. In point of fact, I noted that in my post (and provided an embedded link). My point about Justice Ruth Bader Ginsburg is that here we have an example of unquestioned actual bias against Trump, yet she continues to sit on cases where he is a named party.

I do think it matters when a Supreme Court justice, as a justice, makes statements and takes actions that patently exhibit disqualifying, actual bias against a particular party but continues to judge the case because she thinks she is beyond the reach of ethics rules. She may be right about the ethics rules, but she is not right about her behavior. In the Silliman case Steve concedes there is no actual bias, and pins his view on his mistaken “prospect-of-impropriety” theory. I’m sorry, but the contrast with Ginsburg’s behavior is too obvious to say one is ethical and the other is not.

I gather Steve doesn’t think the case raises any “chilling effect” for law professors who someday might aspire to be judges. I disagree, but even if we want to discard what could be the hopes of some academics, let’s at least think about the students.

My question is this: How many Just Security readers who are professors record their classes? Aren’t there innumerable things said by law students that, taken out of the academic context could, in the abstract, raise questions about their impartiality about any one of a myriad of issues? Indeed, aren’t classrooms the places where students are supposed to ‘test ride’ ideas and opinions?

Are students warned that notwithstanding they may, for example, be lured into an illogical or even impolitic response by a professor’s clever use of the Socratic method that forever thereafter they could (and it would seem Steve would contend, should) be assumed to reflect their views, even in a completely different situation and with the benefit of additional or different facts? Put another way, do professors have an obligation to “chill” student speech so as to not foreclose future opportunities for them? Is this how we want classrooms to operate?

In any event, I would hope that Just Security readers take the time to read my essay as it simply isn’t possible to fully understand my argument based on the snippets Steve uses.

Image: Getty