Damn, you guys are right! If he doesn’t recuse himself, you should take it all the way to the Supr…
Oh. Never mind.
Yep. Sure does look that way, don’t it?
Maybe you should drop the Supreme Court a note and let them know that their oath is unconstitutional minty. 
The judge needs to be impartial beween the parties on various sides of a conflict – not impartial between correct Constitutional interpretation and incorrect Constitutional interpretation.
Supreme Court justices hold their positions by virtue of their ability to finagle a presidential nomination and the votes of 51 senators. Command of the constitutional is, at best, a lucky byproduct of that process. If judicial expertise were an absolute prerequisite, neither Brennan nor Taft would have ever found their way to the high court.
N.B, AQA, that Judicial Conference Canon (and, indeed, judicial canons for most states) are modeled heavily on the ABA model. Thus, the fake reason I used the ABA rules is because the official comments provide insignts into the rules. The real reason I used the ABA rules is because that’s what the MPRE is based on and I still have my review text on my bookshelf.
Minty, could you shoot me a copy of Cooley? We poor unemployed souls don’t have access to Lexis, and Google’s giving me nuthin’.
The judge need not be impartial on the meaning of the law, but he must remain impartial (or at least give the superficial appearance of being so) on the application of the law to an actual case. So sayeth (more or less) Cooley, which I pulled out of the U.S.C.A. and F.2d, but don’t have a copy of right now. I’ll see what I can do tomorrow.
Let’s put it this way: If Scalia doesn’t recuse himself, every single one of Bush’s judicial nominees should be told to do anatomically impossible things when s/he declines to answer an abortion question during confirmation hearings on the ground that s/he may have to rule on that issue one day.
That’s the point that I was trying to make–that the burden is to show the appearance of partiality, and not to show the appearance of impartiality. And just out of an irrational need to defend every stinking point I make (whether relevant or not), here’s the Supreme Court case of Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988), in which the Supreme Court refers to both “the appearance of partiality” and “the appearance of impropriety.” Compare p. 860 (“The goal of section 455(a) is to avoid even the appearance of partiality.”) with p. 865 (“The very purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.”).
Dewey, I suspected you had valid reasons for citing to the ABA Model Code. I’m glad to see that some people still have their MPRE study materials because I threw mine away as soon as I finished the test. That may or may not be evidence of my lack of ethics.
Also, I know you’re interested in seeing Cooley, so I tried to find it on some free sites (findlaw.com; law.cornell.edu; fedworld.gov; lawguru.com; law.com; access.gpo.gov; oyez.nwu.edu) but the farthest back I’ve seen for any free sites that have 10th Circuit opinions is 1995. Even so, I’m a little cautious about treating the 10th Circuit’s interpretation of a statute as binding against the Supreme Court. And even if it is binding precedent, I still think it has limited applicability to the facts before us. Scalia’s comments simply don’t rise to the level of partiality, bias, or prejudice.
Well, I think the nominee ought to tell whoever asks that question to “do anatomically impossible things.” It certainly has nothing to do with whether s/he should be confirmed. But that’s a totally different debate.
If a majority of Americans supported legislation declaring the “Jesus is Lord” would that be acceptible to Scalia?
I’m more knowledgeable than a US Supreme Court judge in a lot of areas. They are more knowledgeable than myself in many areas.
Sadly, in this instance, it appears that I am more knowledgeable than Scalia in a particular area of judicial ethics.
Your ignorance is pardoned.
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As Dewey noted, there is no requirement that a Supreme Court justice have any knowledge of constitutional law. One hopes they do, but all that is required is nomination and confirmation.
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Even if you were right, your ignorance is still manifest - judicial ethics is not an issue of constitutional law.
Actually, that’s precisely the problem: it was not a judgment in any official capacity. If Scalia had said the exact same thing in his opinion on the case - after the facts and legal argument had been presented to him - then there would be no problem. But here he was pronouncing his opinion before the case was before him. He, literally, ‘pre-judged’ the case.
If he has already determined what his ruling is going to be, before hearing the facts and the arguments relevant to the particular case in question, yes.
It works the other way too, of course. If Scalia had already determined he was going to vote in favor of abortion rights, regardless of the facts of the case, he should also recuse himself.
If he could not be impartial, then yes. If he could, then no.
Justice Scalia: Counselor, why didn’t you get a legislative solution to this problem?
Attorney: Um, because I’m not a legislator and neither is my client, so we don’t have the power to get such a solution.
A justice may ask whether the matter was properly before the courts, in very particular instances, but a justice sure as hell won’t ask a lawyer why the lawyer didn’t go to the legislature first.
The rule is that a judge may not publicly state how they will rule on a case that is or is likely to be before him/herself. Scalia can have his personal opinions; he may not declare how he is going to rule.
Sua
Nobody said it was binding precedent on the Supreme Court. Given, however, that 455 does not explicitly limit itself to personal conflicts of the type identifed above by keira, Cooley is a pretty good example that it does apply to judges who have simply prejudged the merits of a particular case. Luckily, we don’t have to wait arond for the Supreme Court to rule on each and every issue before we can state what the law is.
Sez you. Considering that Scalia has announced his position on the particular case before the parties have so much as asked the Court to consider it, I fail to see how he can be considered anything other than partial in this matter.
OK… wheres the part where he says, “I, ______ waive my constitutional rights of free speech…”? Based on this , theres nothing that was stated in the OP article which violates this oath.
However, if you do come up with some sort of fine print that supports the opinion that Supreme court justices waives their right to a personal opinion, would it not be illegal for any of them to be speaking publicly about anything? All cases have a potential of being presented before the supreme court. The fact that the Pledge of Alligiance case is not actually before the supreme court doesnt seem to deter certain elements in this thread.
I see, so you are under the impression that Justice Scalia
a) will not change his mind (for reasons not stated)
b) Cannot be convinced to change his mind
c) is individually unable to change his mind
d) is prevented to change his mind based on his oath of office
e) all or some of the above.
Now, I am confused. You give Justice Scalia the benefit of the doubt in this instance but call for for him to recuse himself on a case that is not even before him yet? All of which is based on his personal opinions given on a Freedom of Religion function? If he can be impartial on Abortion and the Bush-Gore case, why cant he be impartial on the Pledge of alligiance case? His views on abortion and his political slant is well documented and not just his but of the entire supreme court. If the justices’ opinions, personal bias and political prediliction still allows them to be impartial, how does the statements in this news article definitively prove Justice Scalia’s partiality?
Justice Scalia: You have the power as much as any citizen has the power. You can go to your congressman and senator and have this issue resolved democratically. The Constitution says the government cannot “establish” or promote religion, but the framers did not intend for God to be stripped from public life. Let the people decide.
Not to put too fine a point on it, but so fucking what? Nobody in this thread is a judge, much less a justice of the U.S. Supreme Court. Hence, we are under no ethical obligation not to express our opinions on pending cases. I don’t have to be avoid all appearance of partiality. Justice Scalia does.
Appearance of partiality is a political distinction. You avoid even the appearance of impropriety because you want to get re-elected. Since a Supreme court Justice is one for life, you have to present evidence that he is not impartial.
As to the statement that the Pledge of alligiance is not a case before the supreme court, you stated;
The Pledge of alligiance case is not pending in the Supreme Court docket and it has about the same likelyhood of being on the schedule as any other case in this nation. Since that was the case, the justices should be forbidden to say anything about anything.
I think we may get somewhere this time. You see, this is precisely what the bar on prejudging a case is all about. Justice Scalia’s pronouncement has placed an additional burden on one side of the Pledge of Allegiance case that is improper.
The one side is not supposed to have to ‘change the mind’ of Justice Scalia. Both sides are entitled to a neutral court, whose minds should be made up based upon the issues of fact and law presented.
But with Scalia, the anti-Pledge side does not have a neutral court. It has a court on which one member has already decided. Therefore, to win their case, they must either convince 5 out of 8, which is a higher burden than allowed by law, or they must present a heavier amount of law and fact to convince Scalia than is normally necessary.
That is the problem with what Scalia has done.
I’m not giving Scalia the “benefit of the doubt.” I am applying the rules of judicial ethics. And I only call for him to recuse himself if the pledge case comes before him. He has made public statements that demonstrate how he will rule if it comes before him. By the rules of judicial ethics, he has to step aside if the case comes before him.
As for the Bush-Gore election ruling, Scalia made no public statement indicating how he would rule on the case before it came to him. So, no appearance of impartiality was created.
It’s as simple as that.
Scalia is of course allowed to say whatever he wants; the government will not punish or imprison him if he does so. It is simply that, if he does speak out and state or indicate how he will rule on a particular case, he cannot participate in that case when it comes before his court. IOW, he speaks out, he gets to do less work and still keep his job and get the same pay. There is no infringement of his First Amendment rights here.
There can be consequences to your exercise of free speech; there is no bar to that. If you apply for a job at the Bush White House and announce to the interviewer that you voted for McCain in the primaries, you won’t get the job. That is not infringement of free speech. If you have a public record advocating the abolition of the Navy as antiquated, you won’t be offered the position of Secretary of the Navy. No infringement.
And if you are a judge who speaks out as to how you will rule on a particular case once it gets in front of you, you cannot hear the case. No infringement.
Sua
I’ll bypass the issue of whether Scalia should recuse himself, and just say that this quote is ridiculous:
As has already been said, the point of having a Bill of Rights is to ensure that certain rights don’t come and go with each shift in the wind of popular opinion, but are instead beyond the reach of majorities.
Forgot one:
That’s an answer to a different question. That is the one I had presented earlier - “is this case properly before the courts, or is this a legislative matter?”
That is a question a judge would ask. A judge would not ask why a party has not personally put a matter before a legislature, because a party does not have that ability, not being legislators.
Sua
RTFirefly (& others) have misunderstood Scalia’s statement. He is not saying that whether something is included in the Bill of Rights is subject to legislation and popular opinion. He is saying that this particular right is NOT included in the BoR. Therefore it remains subject to popular opinion. Agree or disagree with his position, but at least understand the guy.
As for the recusal/ethics issue, I can’t say that it does not violate some code of judicial conduct - don’t know anything about that. But if it does violate this, it is such a rediculous code of conduct that it deserves to be violated as often as possible, and I would have to commend Scalia for doing his part to eradicate it. Anyone who thinks that a guy like Scalia doesn’t have a pretty good idea what he would rule on numerous cases that might come before him has to be out of his mind. Especially high profile cases like this. The fact that he has decided to declare this publicly is an artificial distinction - he is not any more “biased” for having done so. IMO, the less phoniness the better - more power to him.
Congress doesn’t have to write explicit limitations into a statute for the statute to be enforced in a limited fashion. Obviously, the statute doesn’t explicitly expand its definition to include “prejudgement.” I don’t think “having a preconceived idea about a case” is either a reasonable or realistic interpretation of a statute designed to prohibit bias or prejudice.
And in the interests of intellectual honesty, I am willing to concede that a Supreme Court justice calling a press conference to say how he would rule on hypothetical cases would bother me. However, I don’t think Scalia’s words rise to the level of “prejudgment,” nor do I think the “Pledge of Allegiance” case is likely to come before the Supreme Court.
True. But Cooley is only “the law” in the 10th Circuit. You do have to wait until a court with jurisdiction over you rules on this particular issue before “we can state what the law is” in your area.
I have no idea. I haven’t seen anything in which he said how he’d rule on such a case. If you’re suggesting otherwise, then you’re creating a strawman the size and consistency of the Stay-Puff Marshmallow Man. Plus, you’d be ignoring the rest of Scalia’s speech (as presented by a CNN reporter):
Thanks to IzzyR for explaining what Scalia actually said much better than I could have done.
By the way, does anybody have a link to the text of Scalia’s speech? If we’re going to debate what he said, we ought to at least be able to examine his words, and not a CNN reporter’s version of those words.
Just wondering. Is a personal opinion expressed in a private/public gathering wich references a case that is not even before the judge considered a ruling?
Look, I’m not as pro-recusal on this issue as Minty or Sua, but this is just fucking ridiculous.
When a judge becomes a judge he agrees to abide by the canons of judicial conduct and to conform his behavior to the requirements of the US Code (note in oath when the affiant states he will “faithfully and impartially discharge and perform all the duties incumbent upon me as _ _ _ under the Constitution and laws of the United States”).
The canons of judicial ethics are assented to when a person decides to become a judge, just as the canons of professional ethics are assented to when a person becomes an attorney. I, for example, have a duty (subject to a few narrow exceptions) to not reveal the confidences of my client. That is a limit on my freedom to speak imposed upon my by the ethical rules binding legal practitioners. And if I don’t like it, then I can stop being a lawyer.