Franken vs. Scalia - FIGHT!

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Your thoughts, my esteemed panel?

http://www.cbsnews.com/stories/2005/11/29/opinion/main1083723.shtml?cmp=EM8707

Supreme Court Justice Antonin Scalia is, supposedly, a very smart man. Indeed, he is frequently referred to as the intellectual giant on the current high court.

Yet, when Scalia was confronted by comedian and social commentator Al Franken with a basic question of legal ethics, it was the funny man, not the "serious" jurist, who proved to be the most knowledgeable.

The confrontation took place last week in New York City, where Scalia was the guest of Conversations on the Circle, a prestigious series of one-on-one interviews with Norman Pearlstine, the outgoing Time Inc. editor-in-chief.

After Pearlstine tossed a predictable set of softball questions to the justice, the session was opened to questions from the audience. Up popped Franken, the best-selling author and host of Air America's The Al Franken Show.

According to a scathing article that appeared in the Scalia-friendly New York Post, "Franken stood up in the back row and started talking about ‘judicial demeanor' and asking ‘hypothetically' about whether a judge should recuse himself if he had gone duck-hunting or flown in a private jet with a party in a case before his court."

Franken's reference was to Scalia's refusal to recuse himself from deliberations involving a lawsuit brought by public-interest groups that said Vice President Dick Cheney engaged in improper contacts with energy-industry executives and lobbyists while heading the Bush administration task force on energy policy. A federal court ordered Cheney to release documents related to his work with the task force, at which point the Bush administration appealed to the Supreme Court.

After the administration filed its appeal but before the court took the case, Cheney and Scalia were seen dining together in November, 2003, at an out-of-the-way restaurant on Maryland's eastern shore.

After the court agreed to take the case, Cheney and Scalia spent several days in January, 2004, hunting ducks at a remote camp in Louisiana.

Watchdog groups called for Scalia to recuse himself — Charles Lewis, director of the Center for Public Integrity, argued that fraternization involving a justice and a litigant with a case before the court "gives the appearance of a tainted process where decisions are not made on the merits" — but the justice responded by announcing that, "I do not think my impartiality could reasonably be questioned."

Several months later, Scalia and the other justices remanded the case back to the appellate court for further consideration — a decision that effectively made the issue go away during the 2004 presidential contest.

Scalia, a friend of Cheney's since the days when they worked together in the administration of former President Gerald Ford, had participated in a decision that was of tremendous benefit to the vice president in an election year.

Yet, when Franken raised the issue at the Conversation on the Circle event, according to the Post, Scalia "chided Franken as if he were a delinquent schoolboy." And Time Warner chairman Dick Parsons said of author: "Al was not quite ready for prime time."

In fact, it was Scalia, not Franken, who was caught with his ethics down.

Scalia took issue with the comic's use of the word demeanor. "Demeanor is the wrong word. You mean ethics," the justice claimed, before adding that, "Ethics is governed by tradition. It has never been the case where you recuse because of friendship."

Actually, Scalia was wrong on all accounts. Because U.S. Supreme Court justices decide when to recuse themselves for ethical reasons, they operate under looser standards and softer scrutiny than other jurists. Thus, the term "demeanor" was precisely correct. Legal dictionaries define "demeanor" as one's "outward manner" and "way of conducting oneself." By any measure, with his refusal to recuse himself from a case involving his friend Cheney, Scalia chose to conduct himself in an unethical manner.

How do we know that?

The American Bar Association's Model Code of Judicial Conduct, certainly a reasonable measure for such decisions, is blunt with regards to these questions, stating that:

1.) "(A judge) shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

2.) "A judge shall conduct all of the judge's extra-judicial activities so they do not cast reasonable doubt on the judge's capacity to act impartially as a judge."

3.) "A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment."

4.) "(A judge shall not) convey or permit others to convey the impression that they are in a special position to influence the judge."

Unfortunately, the ABA's model code does not apply — in any official sense — to high court justices.

But there is still no question that Scalia should have recused himself. The standard for U.S. Supreme Court Justices was set by the court itself in a majority opinion in the 1994 resolution of the case of Liteky v. United States. According to that opinion, recusal is required where "impartiality might reasonably be questioned." The opinion set a high standard, declaring that what matters "is not the reality of bias or prejudice, but its appearance."

Who was the stickler for ethics who wrote those words?

Justice Antonin Scalia.
Click to expand...
 
At the time, I certainly thought Justice Scalia SHOULD have recused himself from that case given, at a very minimum, the appearance of impropriety that his connections to VP Cheney would create. That being said, I don't think he was REQUIRED to do so, whether under the SCOTUS rules or any legislative rules.

Edited to add that I don't think Mr. Franken would stand much of a chance in a debate against Justice Scalia. Even his best shot, a sabotage at a public gathering as described in the article, is not likely to result in a flustered Justice Scalia. The man is just that damn smart.
 
[quote name='sgs89']Edited to add that I don't think Mr. Franken would stand much of a chance in a debate against Justice Scalia. Even his best shot, a sabotage at a public gathering as described in the article, is not likely to result in a flustered Justice Scalia. The man is just that damn smart.[/QUOTE]

Sabotage is the wrong word. You mean confrontation.

Smart is the wrong word. You mean devious.
 
An article written by John Nichols from the Nation, seems like a really impartial view of a situation, why didn't they just have Franken write the thing himself...
 
[quote name='Duo_Maxwell']An article written by John Nichols from the Nation, seems like a really impartial view of a situation, why didn't they just have Franken write the thing himself...[/QUOTE]

I agree completely. I had hoped to get an unbiased opinion of the situation from someone...one can dream, right?
 
Written by a guy from the nation, quoting the NYPost, it's like one of those Star Trek quantum singularities or something. I bet you 'Q' is behind this somehow!
trekq4.jpg
 
can't say this is much of a fight. the arguing of semantics at some conference doesn't seem to hold much water - especially in a star trek space time continuum article.
 
[quote name='sgs89']That being said, I don't think he was REQUIRED to do so, whether under the SCOTUS rules or any legislative rules.[/QUOTE]

Well, the article points out that justices aren't required to recuse themselves for any reason, correct? So to make that statement is redundant.
 
[quote name='mykevermin']Well, the article points out that justices aren't required to recuse themselves for any reason, correct? So to make that statement is redundant.[/QUOTE]

Actually, not true.

Federal law does require judges, including Supreme Court Justices, to recuse themselves in certain situations. Specifically, 28 U.S.C. s. 455 provides as follows:

a) Any justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following
circumstances:
(1) Where he has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter
in controversy, or a lawyer with whom he previously practiced law
served during such association as a lawyer concerning the matter,
or the judge or such lawyer has been a material witness
concerning it;
(3) Where he has served in governmental employment and in such
capacity participated as counsel, adviser or material witness
concerning the proceeding or expressed an opinion concerning the
merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his
spouse or minor child residing in his household, has a financial
interest in the subject matter in controversy or in a party to
the proceeding, or any other interest that could be substantially
affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of
relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or
trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be
substantially affected by the outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a material
witness in the proceeding.

So, my statement was not redundant. As can be expected, the article was wrong.

Now, when a SCOTUS justice improperly refuses to recuse himself, the question becomes not whether the law requires him to do so, but rather what is the remedy?
 
Well, that's a valid point (about the remedy). I would argue that Scalia falls under (a) and (b1) in terms of the need to recuse himself, but those are easily the most subjective criterion listed, so my argument won't change the minds of anybody, really.

As a stickler for noticing little bits of patriarchy, I can't help but wonder if O'Connor and Ginsburg are exempt from recusal, given all the "he"s and "his"s in the above cited law. ;)
 
There's an apparent disconnect between this case and Tom DeLay's "judge shopping". That first judge should have presided over Tommy's case.
 
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