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Order and Reasons
Petition for Rehearing
Of Louisiana's four major law schools, only Tulane sponsors trips for judges throughout the U.S. and abroad.
Guidance from AboveJustice Antonin Scalia's recusal from recent Tulane cases after accepting Tulane University funds to teach a course in Greece as part of the Law School's summer study program should prompt Judge Ginger Berrigan, who was similarly paid by Tulane University to teach in Greece, to recuse herself from cases in which Tulane is a party. Fifth Circuit Chief Judge Carolyn King agrees. On April 6, 2001, U.S. Supreme Court Justice Antonin Scalia spent the day at Tulane University, where he was guest speaker at a forum at McAlister Auditorium and later was honored at a Tulane reception. Scalia has taught for four summers for Tulane University as part of a summer study abroad program offered by the School of Law, and he will teach again the summer of 2001 in Greece. The Dean of Tulane University's School of Law, Edward F. Sherman, was delighted over Scalia's presence on campus and exclaimed, "We think of Justice Scalia as one of our own."  Justice Scalia is assigned to the Federal Fifth Circuit, where Tulane cases are heard. Tulane's aggressive pursuit of judges who are, or who may become involved in Tulane cases, underscores a concern raised at Bernofsky's appeal to the U.S. Fifth Circuit Court of Appeals on April 3, 2001 by Circuit Judge Thomas Reavley about petitions to the U.S. Supreme Court for certiorari.JUDGE REAVLEY:
"Would they all be recused if Cert is applied for?"
". . . I'm not sure that just the consideration of Cert
would warrant them recusing themselves. But I think
[if] the case actually got to the Supreme Court, and
it was Justice Scalia who has gone four times on Tulane's
nickel, and a case came up with Tulane, I think Justice
Scalia probably should recuse himself, yes." 
At the time of the above exchange, Bernofsky's counsel and the appellate judges were unaware that Justice Scalia had, in fact, already recused himself from both the consideration and decision of two petitions for certiorari involving Tulane University that had come before the U.S. Supreme Court. These petitions were: Administrators of the Tulane Educational Fund v. Asher Rubinstein, Case No. 00-789, filed 11/13/00, and Asher Rubinstein v. Administrators of the Tulane Educational Fund, Case No. 00-996, filed 12/15/00. Although both petitions were denied by order on March 19, 2001, Justice Scalia had no direct participation in this outcome. In Bernofsky's case, two members of the three-judge appellate panel upheld Judge Berrigan's ruling and decision not to recuse herself in his latest lawsuit against Tulane. However, Chief Judge Carolyn King dissented and wrote the following opinion that questioned the conduct of the lower court.
With respect, I disagree with the panel majority on the matter of Judge Berrigan's recusal. A reasonable person would view the summer teaching assignment in Greece that Tulane Law School offered to Judge Berrigan, along with $5,500 to cover her expenses, as something of a plum. She accepted that assignment in the midst of this litigation against the Administrators of the Tulane Educational Fund, indeed on the eve of her decision to grant summary judgment in favor of the Fund. Under the circumstances (and with a record devoid of any evidence of attenuation in the relationship between the Fund and the Law School), I think that a reasonable person might question her impartiality. I would reverse the judgment and remand with instructions to send the case to another judge.
Chief Judge King's dissent is an affirmation of the recusal statute, 28 U.S.C. §455(a), under which a judge is required to recuse himself in any proceeding in which his impartiality might reasonably be questioned. Moreover, even the appearance of partiality is sufficient to trigger recusal . Justice Scalia, as a recipient of emoluments from Tulane, was sensitive to this issue when he recused himself sua sponte from the two Tulane cases that recently came before the U.S. Supreme Court. Justice Scalia's recusal brings into bold relief the conduct of Judge Berrigan, for as Tulane's counsel so aptly put it during oral argument before the appellate court, "There's no rule that supreme court justices or appellate justices are treated differently under the Code of Judicial Conduct than the trial judges."  The appropriateness of Justice Scalia's recusal from the Rubinstein cases raises the question of why he did not recuse himself from the Bernofsky cases that came to the Supreme Court in 1998 and 1999. After all, he did receive payment from Tulane University to teach abroad in 1997 . Perhaps the difference lies in the intervening appearance of this Web site, where Bernofsky takes issue with judges who accept Tulane funds to teach in resort locations and then adjudicate cases involving Tulane. While Justice Scalia himself may not have independently found this criticism, he most likely was informed of it, especially since Tulane's complaint to the appellate court called attention to this Web site . Justice Scalia did absent himself from Bernofsky's 2001 case before the Supreme Court. Final Outcome In the final analysis, Justice Scalia's recusal from voting may only be a formality because the supreme court justices do not operate in a vacuum and have many opportunities to exercise their influence on one another. Thus, when the remaining justices were polled on whether to consider Bernofsky's 2001 petition for certiorari, their decision to deny the petition was likely little affected by Justice Scalia's technical absence from the voting. Interestingly, it was from Tulane's attorneys, who had received advance notice from the Supreme Court, that Bernofsky's attorneys were informed of the negative decision. In other matters, Justice Scalia has shown little sensitivity to the appearance of a conflict of interest. Endnotes
- The Tulane Hullabaloo News, April 6, 2001. Three months after these words were uttered, Dean Sherman was replaced by Dean Lawrence Ponoroff (www.law.tulane.edu/newdean.htm, accessed 8/10/01).
- Transcript, Oral Argument, Appellate Case No. 00-30704, April 3, 2001, at 4, lines 12-25.
- Levitt v. University of Texas at El Paso, et al., 847 F.2d 221 (5th Cir. 1988).
Note that the Fifth Circuit considers judicial orders vacated if a judge improperly denied a motion to recuse.
- Transcript, Oral Argument, Appellate Case No. 00-30704, April 3, 2001, at 19, lines 17-20.
- International & Comparative Law & European Legal Studies, Tulane Law School, 2000, p. 5.
- See: Appellee's Brief, filed 11/3/00, at 20, FN 12; Carl Bernofsky v. Administrators of the Tulane Educational Fund, Case No. 00-30704, U.S. Court of Appeals for the Fifth Circuit.
- For additional information on the recusals of Justice Scalia and other Supreme Court justices, see: Tony Mauro, "Who's Recusing and Who's Refusing?" Legal Times, March 3, 2004, http://www.law.com/servlet/ContentServer?pagename=OpenMarket/Xcelerate/Preview&c=LawArticle&cid=1078196796203, accessed 03/23/07.
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