Refuse 2 Recuse OR... More Fun with Legal Ethics![Click to read]
Included in my legal ethics education is judicial ethics, as embodied in the Code of Judicial Conduct. It is only going to be tested on 4 to 8 % of the MPRE (that's 2 - 4 questions) so it doesn't represent that big a deal for my exam. But it does have me thinking and I'll bet you can guess about what. That's right. Justice Scalia.
You know the flap** surrounding duck hunting with our veep. Some people think that Scalia should recuse himself. It looks a little hinkey for one of the justices hearing a case in which Cheney is a named party to also be an old hunting buddy of Cheney's.
The point is only partially the judges ability to actually be objective. The other part, possibly the bigger part, is the appearance of objectivity. Or the appearance of bias.
Judges, and lawyers for that matter, need to maintain the confidence of the public as well as the integrity of the legal process. The appearance of impropriety, even in the absence of any actual wrongdoing, can create distrust for the system and contempt for the process itself.
Justice Scalia may well be capable of total objectivity in this case. Nevertheless, his purported relationship with Cheney creates an appearance of bias which will, in turn, cloud the ultimate decision in the case. Right? After all, the Vice President of the United States is a pretty impressive friend to have (if you can stand the "F" word). But then again, so is a United States Supreme Court Justice a pretty impressive buddy. These are heavy weight names to be able to drop. ("This weekend? I'll be blasting the crap out of ducks with Dick Cheney.") It is this perception which should concern us. But how do we know that Scalia and Cheney are buds? Where did this perception come from in the first place?
And why has Scalia refused to recuse? I didn't really know. I decided to find out.
"The Sierra Club makes this motion because... damage [to the integrity of the system] is being done right now. As of today, 8 of the 10 newspapers with the largest circulation in the United states, 14 of the largest 20, and 20 of the 30 largest have called on Justice Scalia to step aside... Of equal import, there is no counter balance or controversy: not a single newspaper has argued against recusal."
This is part of what the Sierra Club had to say in it's motion for recusal. Does this seem a bit familiar to Girl Ipsa readers? The FLA has gone to work for the Sierra Club. Since when are newspaper editors in charge of the SCOTUS (Figure it out, it's easy)? Do the general public, or newspaper editors for that matter, even understand the process of recusal? The rules? The recusal inquiry must be "made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances." Here, the newspaper reports of the FACTS are so wildly divergent that no one merely reading those can be said to be informed, let alone reasonably informed.
This entire controversy distressed me. I like the system. I worship the Justices. I was very unhappy with the idea that Justice Scalia, even though tending far more to the right than I generally do, was so willing to just ignore this appearance of impropriety and do whatever the hell he felt like. It just didn't seem right. Looks like I was guilty of gregariousness, huddling herd-like with the MOB, and casting aspersions thoughtlessly based on what a newspaper editor thought I needed to know. (slap me with a splintered gavel, I've been bad)
If there is damage being done to the system, it is being done by people like me, who should know better. There needs to be a balance in the commentary, and folks with more than a passing knowledge of how this stuff works need to speak up.
Justice Scalia does not believe that his impartiality can reasonably be questioned. Reasonably. REASONABLY. and he is right. It is unreasonable for people to gather their opinions from newspaper editorials, without a second thought. If Justice Scalia were to step down from this case he would be furthering this MOB culture of pre-digested opinions delivered right to your door step, email in-box, television or ears via radio waves. He would be blackmailed by popular opinion, no matter how incorrect or misinformed, into doing something which clearly should not be done.
"To expect judges to take account of political consequences - and to assess the high or low degree of them - is to ask judges to do precisely what they should not do."
This is a little part of what Justice Scalia had to say about this. You can read the rest for yourself. and you should.
** FLAP! That's funny.