# Did Scalia do anything wrong by meeting privately with this group? **URL:** \ **Category:** Great Debates\ **Created:** [February 15, 2011, 2:20am UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403 "2011-02-15T02:20:05Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![gonzomax](https://avatars.discourse-cdn.com/v4/letter/g/e8c25b/32.png) [@gonzomax](https://boards.straightdope.com/u/gonzomax)\ **Post date:** [February 15, 2011, 4:19pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/41 "2011-02-15T16:19:11Z")
> [@Shodan](#): > > My word, the straws you grasp at when you fear Obamacare will be struck down. > > What’s next, impeaching Alito for wearing his socks inside out? > > Regards, > Shodan It has nothing to do with Obamacare. These right wing operatives will be on the court when the decision has to be made. They have a spot on the court until they decide to quit working for the wealthy conservatives. They are not going anywhere. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 15, 2011, 4:36pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/42 "2011-02-15T16:36:07Z")
> [@Bricker](#): > > It’s a no-no for a justice to say how he would rule on a specific case before it comes to him. > > But it’s not at all a no-no for justices to speak to members of Congress on general principles of constitutional law. Indeed, at the state level, where there’s no case-or-controversy requirement, it’s quite common for state judges to issue advisory opinions on issues which are not yet otherwise before the court. > > And as **Bryan Ekers** correctly points out, the other two co-equal branches routinely collaborate on legislation without violating “separation of powers, and all that.” > > So, **Whack** : what, specifically, makes you believe “separation of powers, and all that,” forbids this action, and do you by chance have a cite for whatever you’re relying upon? I used “separation of powers” improperly here. My bad on that. I believe as a member of the Bar you should know: > [@](#): > > \*\*RULE 1.03: IMPROPRIETY AND ITS APPEARANCE > > A judge shall avoid impropriety and the appearance of impropriety.7 > > COMMENT\*\* > > [1] Public confidence in the judiciary is eroded by improper conduct by judges. The prohibition against acting with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. A judge must expect to be the subject of public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.8 > > [2] The test for impropriety is whether the conduct compromises the ability of the judge to carry out judicial responsibilities with integrity, impartiality, independence and competence. Examples of actual improprieties under this Rule include violations of law, court rules, or other specific provisions of this Code. The test for an appearance of impropriety is whether the conduct would create, in reasonable minds, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, independence and competence is impaired.9 > > SOURCE: [http://www.americanbar.org/content/dam/aba/migrated/judicialethics/Canon1.authcheckdam.pdf](http://www.americanbar.org/content/dam/aba/migrated/judicialethics/Canon1.authcheckdam.pdf) (PDF) I think Scalia’s actions creates, in “reasonable minds”, doubt about whether he is impartial. If you were the counsel defending the health care law in front of the SCOTUS would be you relaxed that one of the justices had consulted with your opponent’s side? Or another of those justices had a wife who was pulling in big bucks opposing health care reform? Somehow I doubt it. No one would. That is the issue. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 15, 2011, 4:59pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/43 "2011-02-15T16:59:50Z")
> [@Whack-a-Mole](#): > > I used “separation of powers” improperly here. My bad on that. > > I believe as a member of the Bar you should know: > > I think Scalia’s actions creates, in “reasonable minds”, doubt about whether he is impartial. > > If you were the counsel defending the health care law in front of the SCOTUS would be you relaxed that one of the justices had consulted with your opponent’s side? Or another of those justices had a wife who was pulling in big bucks opposing health care reform? > > Somehow I doubt it. No one would. > > That is the issue. In light of **Polycarp** ’s excellent history summation, how can you maintain the position that reasonable minds would believe that Scalia’s ability to carry out judicial responsibilities with integrity, impartiality, independence and competence is impaired? Justices meeting with congress and presidents has long been the way our government works. Why, suddenly, in 2001, is it an event which calls into question the integrity, impartiality, independence and competence of a particular justice? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 15, 2011, 5:17pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/44 "2011-02-15T17:17:12Z")
> [@Bricker](#): > > In light of **Polycarp** ’s excellent history summation, how can you maintain the position that reasonable minds would believe that Scalia’s ability to carry out judicial responsibilities with integrity, impartiality, independence and competence is impaired? Justices meeting with congress and presidents has long been the way our government works. Why, suddenly, in 2001, is it an event which calls into question the integrity, impartiality, independence and competence of a particular justice? I note a lot of “justice X talked to congress” in there but we are woefully short on details. Of course justices will have occasion to talk to members of congress or presidents. Were they consulting in secret (inasmuch as what was said in the meetings are private and unknown except to a few) and exclusively with one side of an issue? Compare apples-to-apples here. Personally if Ginsburg were in secret meetings or accepting what amounts to gifts for one side ([as Thomas did with the Koch brothers](http://www.nytimes.com/2011/02/15/us/politics/15thomas.html)) I’d be with conservatives in saying that was inappropriate as well. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [February 15, 2011, 5:18pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/45 "2011-02-15T17:18:15Z")
> [@Whack-a-Mole](#): > > I think Scalia’s actions creates, in “reasonable minds”, doubt about whether he is impartial. If Justice Scalia refused to meet with the Democratic members of the Senate Judiciary Committee for a closed-door, roundtable discussion of constitutional principles, then questions would be raised in my mind. I don’t think that a judge talking to politicians about the Constitution is anywhere NEAR an event of impropriety or having the appearance of such. Talk about thought police. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 15, 2011, 5:23pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/46 "2011-02-15T17:23:05Z")
> [@Whack-a-Mole](#): > > I note a lot of “justice X talked to congress” in there but we are woefully short on details. > > Of course justices will have occasion to talk to members of congress or presidents. > > Were they consulting in secret (inasmuch as what was said in the meetings are private and unknown except to a few) and exclusively with one side of an issue? > > Compare apples-to-apples here. > > Personally if Ginsburg were in secret meetings or accepting what amounts to gifts for one side ([as Thomas did with the Koch brothers](http://www.nytimes.com/2011/02/15/us/politics/15thomas.html)) I’d be with conservatives in saying that was inappropriate as well. As **Ravenman** correctly points out, I’d have to hear that another group extended an invitation to Scalia which he declined before I agreed that he was favoring one group over another. But yes – in each of those earlier examples, they were meeting “in secret” – which you define as a meeting that is private and the contents of which are unknown except to the participants. In fact, in the Fortas case, Abe Fortas denied asking LBJ for a pardon, and there was no extrinsic evidence to contradict him. It wasn’t until a subsequent taped phone call between Fortas and Wolfson came to light, in which Fortas alludes to having discussed the issue with Johnson, that the truth came out. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 15, 2011, 5:30pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/47 "2011-02-15T17:30:44Z")
[How is this meeting](http://schiff.house.gov/index.cfm?sectionid=138.7&itemid=405) Justice Breyer had with members of Congress different? We know about it from one of the members’ reporting on it. So are you saying that if one of the attendees did a similar blog post on Scalia’s meeting, you’d be fine? Here’s [a secret meeting](http://www.huffingtonpost.com/2010/04/14/pat-leahy-john-paul-steve_n_537129.html) with Leahy and Justice Stevens. My God, even when asked directly what was said, Leahy refuses to answer: > [@](#): > > “I won’t go into what the conversation was specifically about,” Leahy told the Huffington Post in an interview on Tuesday. “But I did feel the conversation I had with him was important enough to bring it up with the president.” The horror! ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 15, 2011, 5:32pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/48 "2011-02-15T17:32:03Z")
I don’t see an immediate problem with Scalia’s meeting, but I would think it generally a good idea if what was discussed in meetings of this ilk was made public. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 15, 2011, 5:42pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/49 "2011-02-15T17:42:03Z")
> [@Whack-a-Mole](#): > > Were they consulting in secret (inasmuch as what was said in the meetings are private and unknown except to a few) and exclusively with one side of an issue? And this is interesting – you imply that this meeting was closed. It was – to the public. But it was open to all members of Congress, not just Tea Party members. Did you know this and not share it? ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [February 15, 2011, 5:47pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/50 "2011-02-15T17:47:53Z")
> [@villa](#): > > I don’t see an immediate problem with Scalia’s meeting, but I would think it generally a good idea if what was discussed in meetings of this ilk was made public. Heck, barring a national security interest or some comparable issue, I’d suggest making the details _all_ congressional meetings public. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [February 15, 2011, 5:48pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/51 "2011-02-15T17:48:10Z")
I don’t agree that everything the government does in the area of public policy needs to be completely transparent. I think there are certain areas in which a high degree of transparency is essential – for example, the process of awarding billion-dollar contracts for defense projects or road construction – should be subject to scrutiny after a government decision has been made. But at a certain level, there needs to be some relief from the public eye in which policymakers can explore ideas, have frank exchanges, and even have arguments without fear of public embarrassment. I just don’t know how government can function effectively if every single meeting is in the public eye – there would be massive disincentives for thinking outside the box or having political opponents deal with each other on a human level, rather than pure, non-stop political posturing. Let’s just say for the purposes of discussion that Justice Scalia had a congressman ask him a question about penumbras. Now, maybe this congressman had a background in science or business, not the law, and he wanted to know just what the fuck a penumbra was. Can you imagine the potential for embarrassment if it became publicly known that the congressman, who holds such an important job in approving laws, doesn’t even know what a penumbra is? What an idiot! What a maroon! What an embarrassment to his district! So do we want to discourage a politician from asking an important question of substance because he’s afraid that the press and his political opponents will have a field day because he actually attempted to _learn_ something? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 15, 2011, 5:48pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/52 "2011-02-15T17:48:57Z")
> [@Bryan\_Ekers](#): > > Heck, barring a national security interest or some comparable issue, I’d suggest making the details _all_ congressional meetings public. I’d agree - a default of transparency unless there is a reason for it to be otherwise. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [February 15, 2011, 5:54pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/53 "2011-02-15T17:54:10Z")
Ravenman raises a good point though - perhaps a delay is in order. Confidential congressional meeting details will be publicized within one year, barring a compelling interest otherwise. Good luck getting _that_ passed, though. I gather most of us are assuming this meeting was mainly about Tea Party types talking strategy, asking Scalia about avenues of attack (ways to challenge Dem legislation on constitutional grounds) and defense (ways to bulletproof their own legislation against similar attacks), and they invited Scalia because other justices were more likely to tell 'em to fuck off. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 15, 2011, 5:57pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/54 "2011-02-15T17:57:08Z")
Well there is a matter of degree I think. I don’t necessarily mean minutes of the meeting should be made public. But I also think something better than “Supreme Court Justice Anthony “Fat Tony” Scalia meets with teabagger congresscritters to discuss the constitution” is providing a lot of information. There’s a middle ground somewhere, I would hope. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 15, 2011, 6:18pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/55 "2011-02-15T18:18:20Z")
> [@Bricker](#): > > And this is interesting – you imply that this meeting was closed. > > It was – to the public. But it was open to all members of Congress, not just Tea Party members. > > Did you know this and not share it? Of course not. If that is so then fine. I do not see a big deal here either. We can tackle Thomas getting nice trips to Palm Springs on the Koch brothers dime instead. 😉 I’ll also note you never addressed the ethical requirements of the American Bar Association’s admonition to “avoid the appearance of impropriety”. In my view that precept holds most true for a SCOTUS justice who, more than anyone, should avoid even the appearance of impropriety. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 15, 2011, 6:27pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/56 "2011-02-15T18:27:28Z")
> [@Whack-a-Mole](#): > > Of course not. > > If that is so then fine. I do not see a big deal here either. > > We can tackle Thomas getting nice trips to Palm Springs on the Koch brothers dime instead. 😉 > > I’ll also note you never addressed the ethical requirements of the American Bar Association’s admonition to “avoid the appearance of impropriety”. > > In my view that precept holds most true for a SCOTUS justice who, more than anyone, should avoid even the appearance of impropriety. Since the same sorts of things are done, and historically have been done, by Supreme Court justices many times before, I believe that addresses the issue of the appearance of impropriety. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 15, 2011, 6:31pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/57 "2011-02-15T18:31:08Z")
> [@gonzomax](#): > > It has nothing to do with Obamacare. It has everything to do with Obamacare. It is entirely possible that the question as to whether Obamacare is Constitutional or not, will come before the Court. Therefore we are getting a flurry of scandal-mongering from the liberal blogosphere, aimed solely at the more conservative members of the Court, in hopes of dredging up something that can be used to force them to resign or be discredited. That’s all there is to it. Regards, Shodan ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [February 15, 2011, 6:39pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/58 "2011-02-15T18:39:53Z")
> [@Bricker](#): > > And this is interesting – you imply that this meeting was closed. > > It was – to the public. But it was open to all members of Congress, not just Tea Party members. > > Did you know this and not share it? I must have missed this piece of I information. Was it in the Raw Story article I linked to? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 15, 2011, 6:56pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/59 "2011-02-15T18:56:13Z")
> [@Bricker](#): > > Since the same sorts of things are done, and historically have been done, by Supreme Court justices many times before, I believe that addresses the issue of the appearance of impropriety. For something that happens all the time people so far have been thin on specific details. Again, it needs to be an apples-apples comparison. Not that some justice talked to a congresscritter at some point in the past (of course that happens). Anecdotal evidence here and there is a start but if it happens all the time then it should be a simple matter to point it out this avalanche of occurrences. Something where, say, Ginsburg has gone to the liberal equivalent of a closed meeting sponsored by the Koch brothers, all expenses paid in nice locales ([which both Scalia and Thomas have](http://thinkprogress.org/2010/10/20/scalia-thomas-koch/)). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 15, 2011, 7:38pm UTC](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403/60 "2011-02-15T19:38:49Z")
> [@Snowboarder\_Bo](#): > > I must have missed this piece of I information. Was it in the Raw Story article I linked to? [http://www.legalethicsforum.com/blog/2010/12/justice-scalia-takes-some-tea.html](http://www.legalethicsforum.com/blog/2010/12/justice-scalia-takes-some-tea.html) > [@](#): > > We learned this week about our latest tea partier – Justice Scalia. Congresswoman Bachmann (R MN) invited him to appear before the Congressional Tea Party caucus at a meeting open to other Members of Congress but not open to the public. > > I admire Justice Scalia for his intelligence and steadfast adherence to his principles. Still, I am not sure this meeting is a good idea. Judicial ethics rules are not violated (most don’t even apply to the Supreme Court), but I still don’t think the meeting is a good idea. Many other [sources](http://tpmdc.talkingpointsmemo.com/2011/01/dem-reps-back-scalias-attendance-at-tea-party-constitution-event.php) as well… > [@](#): > > Critics of conservative Supreme Court justice Antonin Scalia were quick to raise red flags Monday after he emceed a member seminar on the Constitution at the behest of Tea Party caucus leader Michele Bachmann. MSNBC hosts Lawrence O’Donnell and Rachel Maddow, in particular, suggested his visit was a symptom of the increasing politicization of the Court – particularly among its conservative members. > > But Monday evening, two progressive members who attended the seminar vouched for Scalia and the event, and dispelled the notion that anything untoward happened. > > According to Rep. Jan Schakowsky (D-IL), who addressed reporters just outside the forum, the event was “incredibly useful, partly just to get the sense of Justice Scalia as an individual.” > > “He talked about a couple of old cases where the Congress made mistakes, he felt, in its judgment,” Schakowsky added. “But they were not especially of a political nature… This was pretty dry, actually.” > > All members of the House were invited and allowed to bring a staff member. “There was absolutely no effort to keep anyone away,” Schakowsky added. “Certainly it’s useful to have justices come.” [Previous page](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403.md?page=2) [Next page](https://boards.straightdope.com/t/did-scalia-do-anything-wrong-by-meeting-privately-with-this-group/571403.md?page=4)