Interesting Legal Ethics Question...

[Z]

...namely, the absence of any court w/ jurisdiction to review Scalia's decision not to recuse himself.

story.news.yahoo.com/news?tmpl=story&u=/latimests/scaliawascheneyhunttripguestethicsconcerngrows

[kchoya]

Does anyone really think that Scalia will be more or less inclined to side with Cheney because of this trip? Now, if Cheney took Ginsburg or Breyer out with him and they voted in his favor, that would smell fishy.

[Z]

you're probably right re: outcomes, but as the article mentions, the relevant legal standard demands that "any justice or judge shall disqualify himself in any proceeding in which his impartiality might be questioned." the policy justification reaches beyond fair outcomes, it's premised on the idea that the appearance of justice (i.e. perception of the integrity of the judicial system) is just as important as justice itself.

i'm troubled by the fact that this is such a seemingly easy case, one in which any lower court judge would certainly remove himself, but scalia can choose not to w/o that decision facing review. The situation is aggravated even more by the fact that the cert petition had already been accepted when scalia decided to go on the trip (and the fact that the two have been buddies for decades, which i can't remember whether or not the article mentions).

[hoyarooter]

You're absolutely right, Z. I think it is outrageous that Scalia (a Hoya, no less, if I'm not mistaken) thinks it's perfectly fine to place himself above the application of the most routine legal ethics.

[kchoya]

I do think that the standard of removing oneself whenever "his impartiality might be questioned" is too vauge and far from helpful.

Anyone, especially in a case with political overtones, can question the impartiality of a judge/justice. Whether the issue of impartiality is a reasonable one, that's a different matter. And it becomes more difficulty when you're dealing with people at the top, i.e. the Vice President and a Supreme Court Justice. These are people who mingle in the same circles simply by the nature of the positions they hold. Where do we draw the line? Is it at a presidential christmas party? Is it at a hunting trip to Louisiana? I'm not sure.

Do I think that Scalia's impartiality is compromised by this trip? No. Do I think it looks bad to the casual observer? Probably? Is this a case of democrats trying to make hay out of nothing? Yeah.

I think Scalia probably should recuse himself.

As far as Scalia's decision not be the subject of any sort of review, well, there's no way of getting around that. If the Supreme Court is going to be the highest court in the land, that's how it has to work.

[showcase]

Plus, in fairness to Scalia, I believe there's a "obligation to decide" exception to the recusal rule that applies only to judges at the highest level of judicial review (or perhaps only Supreme Court justices). There are just too many potential disqualifiers for most people by the time they rise to the Supreme Court for any one of them to faithfully honor the letter of the recusal rule, as has been demonstrated above.

I agree it stinks, tho, and that Scalia probably should have begged off the Louisiana hunting trip. I have it on good authority it's not the only hunting trip he takes, so it shouldn't have been all that hard to forego. Moreover, from what I hear, Cheney's hunting trips aren't necessarily all that sporting...