Wednesday, September 29, 2004

As they line up at the Court pre Booker & Fanfan

From the Court, as the Booker & Fanfan argument day approaches, the following collegial exchange as the Justices line up on the various issues raised:

Scalia: “Knock, knock”

Breyer: “Who’s there?”

Scalia: “It’s me, Nino.”

Breyer: “Oh, God!”

Scalia: “Close, but not quite. It’s just me, Nino.”

Breyer: “Coming!”

Scalia: “Hi! Steve. Listen, I just wanted to tell you I think you were right when you told me I should recuse in Cheney’s case.”

Breyer: “Well, that’s nice of you to say, Nino.”

Scalia: “Yeah, and I wanted to tell you that you should strongly consider avoiding the Court further embarrassment by recusing in Booker and Fanfan. My law clerks tell me you once said you would recuse yourself if the guidelines themselves were attacked, and I think that was a wise decision. It’s all over the internet now, you know, from Tony Mauro at to Tom Lincoln at Macondo Law to Ken Lammers at CrimLaw and those ethics professors which Tony Mauro cites. Of course, if you should decide that you'll come to Apprendi-land with us, then nobody would question the tough choice you made, . . . and the papers would be full of stories about how you set aside your ego and followed your conscience.”

Breyer: "Nice try, Nino! See ya."