f/k/a archives . . . real opinions & real haiku

April 13, 2006

Scalia chin-flicks “appearance of impropriety” rule

Filed under: pre-06-2006 — David Giacalone @ 3:28 pm

Julius Caesar — Antonin Scalia’s ancient paisano and fellow conservative
government official — understood very well the concept of the “appearance
of impropriety.”  Ask his second wife. For judges in our country, of course,
the rule has always been that you avoid even the appearance of impropriety,
especially when it comes to potential conflicts of interest in a case directly
before you.  [E.g., you recuse yourself when a personal friend is the primary
defendant in a case.]
ScaliaHandGesture original

Peter Smith/Boston Herald
Most Americans believe Supreme Court justices should be held to the
very highest ethical standards (especially at a time of intense polarity
and partisanship, with a deep suspicion that the Court has become too
politicized). The higher standard seems most appropriate in recusal sit-
uations, where the judge is totally unaccountable to anyone but himself
or herself.
Justice Scalia seems to believe that he deserves to be trusted more, because
he is a member of the nation’s most powerful court (a notion surely at odds
with the Framers he seems to so admire).  Therefore, Scalia declared last
night that his “proudest thing” as a Supreme Court Justice was his 2004
decision not to recuse himself from a case involving Vice President Cheney,
who is a personal friend of his. (AP/Washington Post, April 13, 2006)
ScaliaDissent Many law-related weblogs will surely continue to comment on this remark.
See, e.g., WSJ’s LawBlog (Joseph Schuman); Crime & Federalism (Norm
Pattis); Inside Opinions (Bob Ambrogi).  It is a wonder that a jurist so proud
of his mental capacities and linguistic skills would choose such a sad little
moment to call his proudest.  Perhaps the reason is a sense of embarrass-
ment over the recent “chin flick” incident (covered in detail by us here – and,
yes, he was lewd and obscene).
By pointing to his Cheney Recusal Refusal, Scalia might be trying to say:
“Yeah, I wasn’t man enough to own up to making an
obscene-rude-lewd gesture at a Church, and I did send
out a Supreme Court Spokeswoman to protect my rear,
but I sure stood up to those ethics mamby-pambies
and leftist do-gooders in the Cheney case.”
Justice Scalia as Judicial Macho Man.  Makes-a me proud to be an Italo-
American lawyer. I think two Comments at WSJ’s LawBlog captured the recusal/ethics issu
succinctly and well:  
Scalia puts the cart before the horse. You aren’t supposed to trust
a judge so that he shouldn’t recuse himself, he recuses himself so
that you can trust him. Comment by Stephen – April 13, 2006 at
Stephen’s comment is exactly right. Scalia’s “trust me despite the
appearance of impropriety” theory is, sadly, exactly why there are
recusal rules. Recusal is not an admission of conflict; its a recognition
that in the judicial system, the perception of conflict undermines the
authority of the courts as much as an actual conflict. Comment by
DebraApril 13, 2006 at 11:30 am

Of course, maybe Antonin Scalia is just being crafty.  Maybe he wants to undermine the
authority of the Court.  In which case, his words and antics are right on target.  We need
to make sure the American public knows that Antonin Scalia is not representative of our
Supreme Court, either today or historically.
For some reason, thoughts of Justice Scalia often lead me
to a theme touched upon frequently in the more earthy haiku
of Master Issa:

little chestnuts
pissed on by the horse…
shiny new

hey boatman
no pissing on the moon
in the waves!

laugh at my piss
and shudder…

Issa, translated by David G. Lanoue
If Scalia brings out similar emotions in you,
Issa has three dozen haiku on the topic here.
If Nino makes you think #2, Issa has you covered.
MeNeFrego Me Ne Frego (Italian Hand Gestures)

Powered by WordPress