[EL] is it seemly for Justice Breyer to be pictured in his son's campaign literature?

[Thomas J. Cares]

When I first learned Justice Breyer's son was running for State Assembly, I
pondered whether the Justice would-or-should feel compelled to recuse
himself from that would decide the constitutionality of a statute authored
by his son. How about one his son voted for? Or against? Or abstained [FN
1]. What if Michael Breyer made a passionate floor or comittee speech about
a bill or statute's constitutionality (not uncommon for a legislator to do
, when constitutionality is in controversy)?

Could an argument be crafted for any particular new California legislation
on why Justice Breyer should recuse? (And when would such arguments be
reasonable or compelling?).

These questions still intrigue me.


Thomas Cares

Sent from my iPhone

FN 1. Since in the Assembly, bills need 41 or 54 yes votes regardless of
the number of no votes and abstentions, abstentions have the same force and
effect as voting no. They are often used as a tool for a legislator to
effectively vote against a bill, that may be popular or supported by
influential interests, with less backlash (i.e. Often special interest
'scorecards' will treat an abstention more favorably than a no, on
legislation supports by the interest).


On Saturday, November 3, 2012, Lowenstein, Daniel wrote:

>           I don't see anything wrong with Justice Breyer's picture
> appearing on a campaign mailing for his son, at least if, as I gather is
> the case, it is not on one of the attack pieces.  Your analogy to the
> British monarch seems to me inapt, because just as the Queen would not
> appear on a campaign mailing, the Prince of Wales (or his siblings) would
> not run for political office.  It is common for candidates to appear in
> their campaigns with their families, and it can be taken for granted that
> the justice, like virtually any other father, "supports" his own son.  For
> the same reason, the justice would recuse himself from any case in which
> his son had an interest.
>
>           It is easy to get too Puritanical about these things.  (I use
> the term loosely, because as the great historian Edmund Morgan demonstrated
> in a famous essay many years ago, the Puritans were not as Puritanical as
> we tend to think.)
>
>              Best,
>
>              Daniel H. Lowenstein
>              Director, Center for the Liberal Arts and Free Institutions
> (CLAFI)
>              UCLA Law School
>              405 Hilgard
>              Los Angeles, California 90095-1476
>              310-825-5148
>
> On Sat, Nov 3, 2012 at 1:47 PM, Richard Winger <richardwinger at yahoo.com<javascript:;>
> <mailto:richardwinger at yahoo.com <javascript:;>>> wrote:
> I live in a California legislative district in which Justice Stephen
> Breyer's son is one of the two candidates on the November ballot.  The son,
> Michael Breyer, has sent out at least 4 direct mail pieces.  Two of them
> picture him with his father.  The caption is "Michael Breyer with dad, U.S.
> Supreme Court Justice Stephen Breyer, and mom, Joanna Breyer."
>
> The other two pieces are attack pieces on Michael Breyer's opponent.  The
> opponent is San Francisco's Assessor, and the Breyer attack pieces claim
> the Assessor is corrupt.
>
> Both candidates are on the ballot as Democrats.
>
> It makes me queasy seeing Justice Breyer on campaign literature, even if
> the candidate is his son.  In a sense, U.S. Supreme Court Justices are the
> U.S. equivalent of British royalty.  The queen doesn't even vote, and it
> would be unthinkable for any member of the royal family to appear in on
> campaign literature for a candidate for House of Commons or a local
> partisan election office.  U.S. Supreme Court Justices, like the Queen, are
> formally part of the national government yet are expected to be
> non-partisan.
>
> Richard Winger
> 415-922-9779<tel:415-922-9779>
> PO Box 470296, San Francisco Ca 94147
>
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