I’m not a litigator, so I’ll defer to Minty and Sua’s wisdom on the applicability of the statute.
Application of the statute here does seem a bit extreme to my non-litigator eyes, though. If a judge has a well-known view of constitutional interpretation that is directly in conflict with a case that may come before the court, does that alone make him “impartial” by the definition of the statute? If not, why does publicly stating that view suddenly make it impartial?
(I recognize that there are issues related to the standards for judicial conduct, but that’s not the same as this specific statute)
And I completely fail to see how such views could constitute a “personal bias or prejudice” toward a party. If it was, every justice with strongly-held views on constitutional interpretation in a given area woud have to recuse themselves on bias grounds whenever a case in that area was before the court. I think that would mean that pretty much every justice would have to recuse themselves from any case that is remotely controversial, since they’d have a “bias” in favor of one side or the other. It makes more sense if “personal bias or prejudice” means something like “one of the parties is my golfing buddy.”
And I find the arrogance level of you presuming you lecture us when you are talking out of your ass way past all limits of tolerabililty. To those of us in the legal profession, the rules regulating judicial ethics are well known; indeed we are tested on them (as part of the Multistate Professional Responsibility Examination).
I count at least three attorneys in this thread, myself included.
As for whether we are peers, since I apparently know the rules of judicial ethics and Justice Scalia does not, in this area I would say that Scalia should be deferring to me, not the other way around.
Um, that is not the standard. You see, we have rule of law, not rule of Scalia. Scalia may not like the fact that he cannot prejudge a case that is likely to come before him, but that is his legal responsibility.
I can prove it. Before the law (and the facts; don’t forget the facts) were presented to him, he stated how he would rule. That is “pre-judging” a case.
Certainly he can; all he has to do is resign from the Supreme Court.
Both you and december are operating under a misconception of the right to free speech. Sure Scalia had an unfettered right to free speech, but he voluntarily waived part of that right when he took his oath of office and became a judge. The part that he waived was commenting on cases that are or may be before him.
Voluntary waiver of rights in order to take a job with the government is nothing unusual. Members of the armed forces waive several constitutional rights when they sign up. Employees of the CIA do the same.
—Scalia’s impropriety appears to somewhat academic, since his opinion on this issue was already more-or-less known. Also, in this case, the legal ethics would appear to restrict his freedom of speech.—
That’s what I mean: I think for the most part it’s just a polite convention to not speak about cases or potential cases. I don’t know for sure though.
I mean, jeez, Supremes fail to recuse themselves for all manner of much more relevant conflicts of interest (like, friends and family members arguing one side of the case, outcomes one way or another benefiting them) than just having opinions (which they are supposed to have, or else their nomination wouldn’t be a part of the political process).
Hmph – I’d hope the Chief Justice of the U.S. Supreme Court would at least know that “In God we Trust” didn’t appear on American coins until 1864, and didn’t become our national motto until 1953.
28 USC 144 really does not apply, because that statute applies to federal trial courts, as Dewey mentioned.
28 USC 455 (a) also does not apply, because the “impartiality” has to do with personal connections to people in the suit, not broader views of Constitutional interpretation or issues of public policy.
28 USC 455 (b)1-- has to do with the parties involved or with disputed evidentiary facts. Again, the evidentiary facts are only at issue at the trial court level (unless, perhaps, the case is on appeal based on alleged error at trial involving admissibility of evidence, or something along those lines).
The trial court is the stage where facts are found, and that is where personal bias is a big problem. Once the case goes to appeal, the facts have been found. In fact, justices in courts of appeals and higher are pretty much expected to keep up with decisions from lower courts, and be familiar with the issues.
Scalia was commenting that, as a matter of law, he believes some courts have misinterpreted the Constitution, that the Constitution does not, for example, prohibit the phrase “under God,” in the pledge. Stating his view on how the Constitution should be interpreted is HIS JOB, and is something he has done many times before, both on the job and in his free time.
Attrayant mentioned Scalia’s suggestion that restricting religion be done legislatively-- that is because, according to Scalia, the Constitution does not restrict religion in the way lower courts have said. It restricts it some, but not that much. That means that if we (the people) want it restricted more, we would need to pass legislation. At the same time, we’d have to avoid violating the “prohibiting the free expression thereof” clause of the 1st Amendment, so no, that does not mean Scalia advocates constraining religion every which way. To be more specific, Scalia was saying that the court went too far, read more into the 1st Amendment than was really there, and misinterpreted the law.
I’m not a lawyer, only a meager little law student, but that’s my view of it (after a semester of spending my days doing nothing but reading judicial opinions)…
Scalia didn’t recuse himself on the Election decision even though both of his sons are members of law firms that represent the Bush brothers, so I seriously doubt he’ll recuse himself from this.
I don’t think y’all are grasping the importance of the appearance of impartiality. Courts have no ability to independently enforce their rulings; they rely on the goodwill of the populace and the respect afforded the courts. If the courts, and particularly the Supremes, act in a way that makes it appear that they don’t care about the particular facts and issues of a particular case, but have made up their minds beforehand, the appearance of impartiality is destroyed and respect for the courts is bound to diminish.
Hell, Justice Harlan didn’t even vote, for fear of injuring his impartiality.
Oh, I forgot to mention, I disagree with Scalia here!!! And probably on other issues as well, but I had to cash in my two cents on statutory interpretation, because, from what I see, he hasn’t violated any ethics (except, of course, for being wrong).
Is this honestly something for which Scalia have recused himself? Sounds a bit of a stretch to me. “Yeah, I’m related to someone who works for someone who has been employed by the plaintiff, so I’m gonna have to pass…” Honestly, if that’s recusable, where do we draw the line?
Jeff
I believe that is incorrect. While section 455 permits judges to comment generally about the law, it does not permit them to prejudge a particular case, as Scalia did here regarding the “In God We Trust” case that is almost certain to make its way from the 9th Circuit to the Supreme Court in coming months. See, e.g., United States v. Cooley, 1 F.3d 985, 995 (10th Cir. 1993) (Judge’s appearance on Nightline to comment on abortion clinic protests required recusal from subsequent criminal trials of protestors).
By the way, the standard for recusal is the appearance of impartiality.
As for section 144, Dewey is correct that it only applies to district courts. However, 144 and 455 overlap significantly, and cases within that overlap are generally construed as being applicable to both sections. I was trying cite them for the general principle, not the specific application to Justice Big Mouth. Sorry for the confusion.
Sua is relying on the ABA Model Code of Judicial Conduct for his position. It outlines the professional and ethical responsibilities of judges. Specifically, he is referring to Canon 3, “A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY AND DILIGENTLY.”
Subpart (B)(9) to that Canon contains the relevant language:
So I guess the question turns on whether Scalia’s comments could “reasonably be expected to affect [the] outcome or impair [the] fairness” of the Pledge case in its final disposition.
Section E of Canon 3 describes when a judge should disqualify himself. The portions relevant to the current discussion follow:
That case is not on point, as it has to do with a district court judge, again, on the trial level, where the court is finding facts. I believe that when a case reaches the appeals level, and the judges are concerned with questions of law (not of fact), then there is less concern about prejudging a case… it has ALREADY been judged, and the court is reviewing the process that led to it’s being judged.
Except, of course, that 455 (on which Cooley is based) applies equally to appellate judges. Thus, your trial/appellate distinction is rejected by the statute itself. Try again, 2L.
Dewey, as I’m sure you know, the Model Code of Judicial Conduct is just a model code. It’s not binding on judges or justices until approved by the legislature or the Supreme Court. To my knowledge, neither has happened. Here is the Judicial Canon of Ethics which was adopted by the Judicial Conference of the US. The general rules are pretty similar, but it lacks the in-depth commentary of the ABA Model Code. The Judicial Canon of Ethics is binding on all federal judges except the Supreme Court, to whom it is only advisory.
I think Sua was referring to the informal practices of the Supreme Court, rather than their adherence to any strict rules or laws. I’m certainly in favor of their taking pains to appear impartial, but I think you folks are stretching to find partiality and bias where none exists. (For the record, I’m a lawyer, I’ve taken the MPRE, and I’ve clerked for a federal judge).
I don’t think that what Scalia said here counts as impartiality, bias, or prejudice. If you think these comments showed bias, I assume you also argued for the recusal and/or disbarment of Harry Blackmun, who wrote in dicta, “From this day forward, I no longer shall tinker with the machinery of death. . . . It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.” Clearly, he’d prejudged how he’d rule on future death penalty cases.
Or perhaps we should call on Ruth Bader Ginsburg to resign in light of these “clearly inappropriate” remarks during her lecture to Wellesley College in 1998: “A system of justice is the richer for diversity of background and experience. It is the poorer, in terms of appreciating what is at stake and the impact of its judgments, if its members - its lawyers, jurors, and judges - are all cast from the same mold.” Obviously, she has prejudged the virtue of “diversity,” so we cannot depend on her impartiality in deciding future cases on affirmative action.
And I’m guessing that Rehnquist is going to feel pretty silly after being forced to recuse himself from hearing any more civil liberties cases (especially during wartime) because he published this book on that subject.
Or–and I’m just spitballing here–maybe those statutes don’t prohibit having a preconceived idea of how particular events might fit within your constitutional ideology. Maybe they don’t even prohibit expressing those ideas. Maybe they don’t even prohibit (Heaven forfend!) a Supreme Court justice speaking at a religious event. Maybe what those statutes mean by “impartiality” is a judge or justice deciding a case on factors other than the law.
Uhh, no, the standard is the appearance of impropriety. Impartiality is the good thing. The burden lies with those trying to prove otherwise.
Wouldn’t this be a terrible way to do things? All anyone would need to do to negate Scalia’s vote on the Court would be to hire his children’s firm. Scalia’s kids would become the 10th Justice.
Read the cases, AQA. The standard is as I have stated it to be.
Also, note the distinction between commenting generally on SOCAS/diversity/civil rights and stating how a particular case, pending or likely to be pending before the judge’s court, should be resolved. It is Scalia’s comments on the 9th Circuit IGWT case that were improper, not his general take on the Establishment Clause.
And while the Judicial Code of Conduct is only advisory as to the Supreme Court, 28 U.S.C. 455 is quite binding.
Except, of course, that it is the appearance of “partialitity.” Dammit. Oh well, it’s certainly not an impropriety standard when it comes to judging impartiality.
Well then, maybe you should send your name to Mr Bush for appointment seeing as you deem yourself to be more knowledgable than a US supreme court judge. [sarcasm]Pardon my ignorance [/sarcasm], but I was under the impression that Supreme court judges are the highest justices in the land by virtue of their command of constitutional, and that includes Justice Scalia.
I dont think we have a rule of Sua either, seeing as all of this discussion stems from a Freedom of Religion speech of which Justice Scalia was a main speaker. It was certainly not a judgment in any official capacity, and there certainly is no outright evidence of partiality. Justice Scalia is a catholic, should he recuse himself for all potential Abortion cases? A republican appointed Scalia, should he have recused himself from the Bush-Gore election ruling? The comments Justice Scalia expressed in that article suggested a legislative solution instead of a judicial one. Any lawyer presenting a case before the supreme court would be questioned as to why that solution is not used. That is not a prejudgement, but more than likely a direct question he, himself, would ask if and when a case ever does come before the supreme court.
I can prove it. Before the law (and the facts; don’t forget the facts) were presented to him, he stated how he would rule. That is “pre-judging” a case.
**
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Then you must have a more complete transcript of his speech because I cant find anywhere in that article where Justice Scalia said how he would rule.
[qoute]
Quote from the CNN article:
Scalia, the main speaker at an event for Religious Freedom Day, said past rulings by his own court gave the judges in the Pledge case “some plausible support” to reach that conclusion.
However, the justice said he believes such decisions should be made legislatively, not by courts.
The rally-style event drew a lone protester, who silently held a sign promoting the separation of church and state.
“The sign back here which says ‘Get religion out of government,’ can be imposed on the whole country. I have no problem with that philosophy being adopted democratically. If the gentleman holding the sign would persuade all of you of that, then we could eliminate ‘under God’ from the Pledge of Allegiance. That could be democratically done,” said Scalia.
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Certainly he can; all he has to do is resign from the Supreme Court.
Both you and december are operating under a misconception of the right to free speech. Sure Scalia had an unfettered right to free speech, but he voluntarily waived part of that right when he took his oath of office and became a judge. The part that he waived was commenting on cases that are or may be before him.
Voluntary waiver of rights in order to take a job with the government is nothing unusual. Members of the armed forces waive several constitutional rights when they sign up. Employees of the CIA do the same.
And so do judges.
Sua **
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Maybe you can link us the fine print where a US Supreme Court Justice waives his inalienable right to a personal opinion upon being appointed.
