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

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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)

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

11:19 am

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

Debra – April 13, 2006 at 11:30 am