If the high court takes this case, an interesting question is posed: Can participating in a fantasy baseball league require Unites States Supreme Court judges to recuse themselves? In particular, will Justices Samuel Alito or John Paul Stevens find themselves watching this suit from the sidelines if it goes up to the high court?

Stock investment, we know from the recently decided 4-4 decision in the Rezulin drug case (Warner-Lambert v. Kent), can cause a conflict of interest recusal, as Chief Justice John Roberts didn’t participate due to a $15,000 stock investment in Pfizer, parent company of Warner-Lambert. The subjects of recusal and the problems of a 4-4 split have been discussed by many, including Howard Bashman (advocating an appellate judge sit by designation), Drug and Device (the problem of forum shopping due to splits in the Circuits, and its impact on multi-district litigation), and SCOTUSblog (noting that this is a rare occurrence). It had previously been discussed by Eugene Volokh (sell your stock judge!) and Stephen Bainbridge.

That recusal may now come up again, not due to stock holdings, but quite oddly in an altogether different manner: The subject of Rotisserie Baseball (a/k/a “roto” or fantasy baseball) is now before the court on a petition for certiori to determine if baseball statistics are owned by Major League Baseball or are free to the world under the First Amendment (see Above the Law, Sports and the Law: Supreme Court Might Hear Dispute Over Fantasy Sports Property Rights, CBC v. Major League Baseball).

Here’s how it impacts players of the game, which could easily include one on or more high court judges: Fantasy team owners draft real players from around the league at the start of the season to form their own teams in their own leagues, and use those very real statistics as their own to compete and trade against other team owners in their fantasy league. But it’s not just a few bucks in gambling money at stake for the winner. Those statistics are complied by various services that make them available to the public for a fee. So even if you aren’t in a roto money league, you still need the stat service to compile the data to determine which fantasy team has more homers, RBIs, stolen bases, etc. than the other teams in your league. And Major League Baseball wants a cut of that money by licensing the information out.

If you play roto you know this drill well. Now heading into my 20th season, I haven’t yet won, despite the heroic efforts of my brother that does 99% of the heavy lifting. But if you have to pay more money at the beginning of the season for the right to use those stats then there will be real economic issues for every single team owner. We fantasy team owners don’t want to pay money to the multi-millionaire real team owners just to have our fun.

Setting up dates for the start-of-the-year drafts are going on now across America as the season prepares to open. These fantasy leagues are very popular, with a considerable industry devoted to it (hence the litigation). So this leads us to this oddball question with its constitutional issues: Are any of the Supremes fantasy team owners? If so, they have an interest in the outcome of the suit. What does that lead us to?

Free league or not? Does fair use of the statistics come into play if the league is non-money, meaning no gambling fees, but you still need to pay for the stats? Will free leagues still be required to pay a fee for use of the stats if the court were to decide that Major League Baseball owned them or does the First Amendment protect them? Is it different for leagues with money involved?

Oh, I know what you think, this a silly long shot. But read this from US News and World Report on Justice Samuel Alito:

“A longtime Philadelphia Phillies fan, he uses sports metaphors in speeches. As a child, he played second base and dreamed of becoming a baseball commissioner. As an adult, he coached his son’s Essex County Little League team, and his wife once sent him to a fantasy Phillies baseball camp where he played second base alongside professional ballplayers.”

Reviewing a photograph of the chambers of Justice John Paul Stevens, I see a signed Cal Ripkin baseball, a picture of The Babe and a 1932 Word Series scorecard. You gotta be a pretty big fan to have a framed scorecard in your chambers.

Roto in the high court? Seems like a possibility.

Either Alito or Stevens (or others) might have to consider recusal since they may be forced to pay money to buy the stats if the case is decided in favor of Major League Baseball.

As ballplayers limber up in Florida and Arizona for the coming season, the issue of money hangs over the heads of fans who play fantasy baseball. Or at least, it will hang over their heads if the Supremes take the matter and render an unfavorable decision.

Last: The petition for certiori, now pending, may tell the tale of whether one or more recusals are in the works.

I hate it when someone with so little experience is nominated for a judgeship. And when I write “so little experience,” I mean I apparently had more in my first full year than Bush’s nominee for the Middle District of Tennessee has had in an entire career. Gustavus Adolphus Puryear IV is the subject of a Stephanie Menicmer skewering that just appeared in Mother Jones.

Leaving aside the roman numerals after his name – blame his parents for that one — what does he bring with him to the bench if confirmed by the Senate? He has this courtroom resume: He has tried two cases, though the article doesn’t say if that means they were actually tried to verdict or he picked a jury and settled.

His current position is that of an executive for a private prison company. And in that capacity had this to say: “Litigation is an outlet for inmates. It’s something they can do in their spare time.” Legal issues that may be raised are, apparently, unimportant.

Now I’m not saying that courtroom experience is a requirement to be a judge. I don’t say that because the Constitution doesn’t say that. But it damn well should be to get past the Senate in their capacity to give advice and consent for judicial nominees.

If you want to know how political connections result in judicial nominations, check out the Mencimer article.

This isn’t about politics of the left or the right, but about basic competence to do a job. Considering that the lives of others would be in his hands, I think that’s kinda important.

The Senate Judiciary Committee held a hearing on February 12th, and has not yet voted on the nomination.

More at:

• Bush Judicial Nominee: Private Prison Executive With Little Court Experience (TalkLeft);
• Ex-Inmate Crusades Against Judge Nominee (SF Chronicle)
• D.C. Liberals have Gus Puryear in their sights (Conservatives for Corker);
• Bush Picks A “Brownie” for TN Bench (Southern Beale);
• AFJ opposition to Puryear nomination makes the Associated Press (Justice Watch)

I’ve had the misfortune of appearing in the Bronx County Family Court a few times in the past. And I’ve almost blogged about my experiences because they were so horrible.

And by horrible, I mean that the people who appear for family disputes and custody hearings can’t even get into the courthouse and to the hearing rooms because of broken elevators. It can easily take two hours just to get to the hearing room. Then the hearings get adjourned until another date because everyone isn’t present.

Today, the New York Times has a piece on this very problem, front page of the Metro section, above the fold.

Many law blogs discuss great principles of the law. But principles mean nothing if you can’t get in the door to argue your case.

British Prime Minister William Goldstone once said, “Justice delayed, is justice denied.” And nowhere is that more true than in the Bronx Family Court.

New York’s Chief Judge, Judith Kaye, threatened to bring a lawsuit for judicial pay raises in April (New York’s Chief Judge Threatens To Sue For Pay Raises).

Then she changed her mind in July (A Judicial Brawl in New York As Chief Judge Kaye Abandons Lawsuit Threat).

Now, according to this AP report, she is once again threatening a lawsuit (NY’s chief judge says she may sue over judicial pay raises, via Judicial Reports).

What, exactly, is the rest of the state’s judiciary to think?

Links to this post:

eric turkewitz of new york personal injury law blog [lexblog q & a]
eric turkewitz, the new york attorney and founder of the turkewitz law firm, is the featured interview subject for today’s lexblog q & a. aside from his legal work, eric also runs a blog, the new york personal injury law blog, …

posted by [email protected] (Rob La Gatta) @ February 21, 2008 2:49 PM

eric turkewitz of new york personal injury law blog [lexblog q & a]
eric turkewitz, the new york attorney and founder of the turkewitz law firm, is the featured interview subject for today’s lexblog q & a. aside from his legal work, eric also runs a blog, the new york personal injury law blog, …

posted by [email protected] (Rob La Gatta) @ February 21, 2008 2:49 PM

anything that fits, they’ll print
after another round of threatening, pleading and cajoling, the issue of judicial pay raised for new york’s judges came back to the editorial page of the new york times this week. as eric the turk noted, chief judge judy kaye …

posted by SHG @ December 14, 2007 2:07 PM

Nine years is a long time to go without a raise. And that’s how long New York’s judges have gone without. And when I say no raise, I mean they haven’t even received a cost of living increase to their $135,900 salary.

So Staten Island’s Acting Supreme Court Justice Philip Straniere is letting his whiskers go as his way of protesting.

The story comes out of the Staten Island Advance (hat tip: How Appealing), and here is they money quote on his four-month old beard:

[T]the way things are going, my beard should be long enough by Christmas for me to get work as a sidewalk Santa for some charity.”

Since first year associates at big firms blow the judiciary out of the water with the money they make, we can expect a decline in our state’s judiciary if this continues.

And if the beard idea gets traction in the courthouses, things could get interesting.

Previously covered:

• Where Are Our Judicial Pay Raises? (1/29/07)
• New York’s Chief Judge Threatens To Sue For Pay Raises (4/9/07)
• A Judicial Brawl in New York As Chief Judge Kaye Abandons Lawsuit Threat (7/9/07)

Links to this post:

judge grows beard in protest of judicial salaries
eric turkewitz’s new york personal injury law blog has a post on staten island’s acting supreme court justice philip straniere growing a pretty much out of control beard in protest of new york judges failure to get a raise in nine years …

posted by Ronald V. Miller, Jr. @ December 08, 2007 11:53 AM