Franken v. Scalia

John Nichols in The Nation describes an event in NYC last week where Justice Scalia was taking questions from an audience. Al Franken was in the audience and: "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 was referring to Scalia himself who didn't recuse himself from Cheney, Vice President of the United States, et al. v. United States District Court for the District of Columbia et al. Scalia and Cheney know each other and were seen having dinner before the court accepted the case. And they went on an annual duck hunting trip with many other people together.

Scalia answered: "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."

The article says "Actually, Scalia was wrong on all accounts" and cites The American Bar Association's Model Code of Judicial Conduct though it notes that it doesn't apply to the US Supreme Court Justices.

The article goes on to say:

The standard for U.S. Supreme Court Justices was set by the court itself in a majority opinion in Liteky v. United States (1994). 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."

The article ends with the supposed bombshell that Scalia authored the above decision.

Well if you actually read the decision it's a different matter. The "impartiality might reasonably be questioned" phrase is actually in the law, USC 28, Section 455(a). If you make it to 2nd paragraph of the decision you see it says: "Held: Required recusal under 455(a) is subject to the limitation that has come to be known as the 'extrajudicial source' doctrine." So the decision that Scalia authored describes a limitation on the need to recuse.

"Extrajudicial Source" comes from US v. Grinnell Corp (1966) and Scalia says "First, Grinnell (the only opinion of ours to recite the doctrine) clearly meant by "extrajudicial source" a source outside the judicial proceeding at hand". So basically things a judge learns during a trial that might bias his or her opinion one way or another is not sufficient to demand recusal.

Scalia also writes: "Since neither the presence of an extrajudicial source necessarily establishes bias, nor the absence of an extrajudicial source necessarily precludes bias, it would be better to speak of the existence of a significant (and often determinative) 'extrajudicial source' factor, than of an 'extrajudicial source' doctrine, in recusal jurisprudence.

"'Partiality' does not refer to all favoritism, but only to such as is, for some reason, wrongful or inappropriate. Impartiality is not gullibility. Moreover, even if the pejorative connotation of "partiality" were not enough to import the 'extrajudicial source' doctrine into 455(a), the 'reasonableness' limitation (recusal is required only if the judge's impartiality "might reasonably be questioned") would have the same effect. To demand the sort of 'child-like innocence' that elimination of the 'extrajudicial source' limitation would require is not reasonable.

The Liteky decision was unanimous, so all the other justices agreed. I'm no lawyer (let alone a judge) but it seems to me that what matters is whether or not there was inappropriate favoritism. I don't know if there was in the case Franken brings up (I note Scalia concurred in 4 out of 5 parts in a 7-2 majority). I do think that John Nichols' argument doesn't hold water. FYI, Cheney wrote a memorandum to the Cheney case, explaning in depth why he did not recuse himself.

And for all of you that think I hate Franken, I give him a lot of credit for this stunt (which really is what it was).