Kennedy’s Refusal to Sit on Case Without Telling Why Is Questioned
Justice Anthony M. Kennedy surprised lawyers working on the independent counsel case by announcing last week that he would sit out this major constitutional test of a post-Watergate anti-corruption law.
And he disappointed legal analysts by announcing that he would not divulge his reasons.
For the record:
12:00 a.m. March 6, 1988 For the Record
Los Angeles Times Sunday March 6, 1988 Home Edition Part 1 Page 2 Column 5 National Desk 5 inches; 152 words Type of Material: Correction
The Times incorrectly reported in its March 2 editions that a 4-4 split by the Supreme Court on a challenge to the constitutionality of the law establishing independent counsels “will void” the convictions of former White House officials Michael K. Deaver and Lyn Nofziger. The federal appeals court in Washington has ruled the law unconstitutional because it gives a special federal three-judge panel, not the executive branch, the power to appoint independent counsels, and a 4-4 Supreme Court split would leave that decision intact. Deaver’s appeal of his conviction would be heard by the same appeals court that found the independent counsel law unconstitutional, and it presumably would void Deaver’s conviction if the judges hearing the appeal felt bound by the precedent. But if Nofziger appealed his conviction, the independent counsel who investigated him could argue that his prosecution was valid because that prosecutor--unlike the prosecutor in the Deaver case--had accepted a so-called backup appointment from the executive branch as well as the three-judge panel.
“He thinks it would be improper to explain why,” court spokesman Toni House said. “He believes that to explain his reason might have the effect of putting pressure on the other justices.”
Chief Justice William H. Rehnquist and Justices Harry A. Blackmun and Sandra Day O’Connor say that they feel obliged to explain why when they decide to sit out a case. Kennedy’s predecessor, Justice Lewis F. Powell Jr., also routinely cited his reasons.
However, most of the current court members refuse to do so.
The code of judicial ethics says that judges should recuse themselves if they face a conflict of interest or the appearance of a conflict. At times, justices have withdrawn from a case because they had a financial stake in the outcome or because a friend, relative or former law partner had a direct interest.
“Our legal system works only when judges give reasons for their decisions,” New York University law professor Steven Gillers said. “That’s one reason why we respect court rulings. Here, we are left with a shroud of secrecy and suspicion, speculation and unease.”
In Kennedy’s case, speculation has centered on his relationship with current and former Reagan Administration officials such as Atty. Gen. Edwin Meese III, former White House Deputy Chief of Staff Michael K. Deaver and former White House political adviser Lyn Nofziger. Kennedy, a former California lobbyist, knew all three when they worked for then Gov. Ronald Reagan in Sacramento.
In recent prosecutions brought by independent counsels, Deaver was convicted of perjury and Nofziger of illegal lobbying. Meese’s efforts on behalf of a proposed Iraqi oil pipeline are under review by the same independent counsel who prosecuted Nofziger.
In the case before the Supreme Court, the Reagan Administration argues that the 1978 Ethics in Government Act, which authorizes judges to name independent counsels to investigate charges of wrongdoing by current and former government officials, unconstitutionally delegates that executive branch function to the judicial branch.
The case was brought by former Justice Department attorney Theodore Olson, who is under investigation by an independent counsel on charges that he lied to Congress in testimony about the Environmental Protection Agency in 1983. The case will be heard on April 26.
If Kennedy’s withdrawal leads to a 4-4 split, it will not only have the effect of affirming a lower court ruling overturning the 1978 act, but it will void the convictions of Deaver and Nofziger and possibly end the investigations of Meese and other Administration officials.
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