28 March 2004

Just Ducky

Since virtually everyone else in the blawgosphere has weighed in, I suppose I should too. Despite my personal preferences—the last thing that anyone needs in interpreting grey areas in FOIA is an avowed formalist, regardless of political inclinations!—I do not think Justice Scalia is obligated to recuse himself. Far from it; as his order points out at excessive length with excessive pedantry, and as Professor Ron Rotunda points out much more cogently in the Washington Times (difficult as that may be to believe, given the usual turgidity one finds there) (N.B. Professor Rotunda was as close to a "mentor" as I had in law school), neither the text of the statute nor applicable precedent requires Justice Scalia to recuse himself. It is a decision within Justice Scalia's discretion.

That said, I believe that it is appropriate for Justice Scalia to recuse himself. I advocate the military officer's rule (an appearance of a conflict of interest must be treated as one absent either compelling immediate circumstances or a disinterested determination that there is no actual conflict) for all lawyers, let alone for judges. Were I in Justice Scalia's position, I would recuse myself. But I am not. Justice Scalia no doubt has more personal knowledge of the situation than any outsider does, and I suspect that he consulted others whose judgment he trusts—probably informally, and not necessarily lawyers—before making his final decision. So long as his belief that he can be impartial is honest—which I am not questioning—and he has actually thought through the issues, we must be satisfied with the result. <SARCASM> In any event, I would probably regret not getting to read the vitriol of whatever opinion Scalia writes in this matter if he did recuse himself. </SARCASM>