02 April 2004

Duck Duck Goose

Well, the backlash against Justice Scalia's refusal to recuse himself from the Cheney matter has certainly gotten off to a fast start. The arguments on both sides reflect an abject failure to understand the distinction between what is required and what is advisable. (That this also reflects the abyssmally low standards in the legal community is, for once, beside the point.) The problem can be stated more clearly like this:
  • No legal rule, whether case law, statute, or clearly accepted ethical standard, requires Justice Scalia to recuse himself in this kind of case. Arguments that he benefitted financially simply don't wash; if they did, White House Chief of Staff John Sununu would have faced charges instead of merely being hounded from office by adverse publicity over the "Air Sununu" trips. (N.B. I have direct, extensive first-hand knowledge of the circumstances surrounding "Air Sununu"; they are both more and less damning than is generally known to the public; and I can say nothing further.) Similarly, contrary to Mr. Lazarus's attempt to turn appearance into requirement, involvement in a prior matter that ended up being resolved in the favor of a litigant—even in the context of an election-outcome-determinative judicial matter—does not require recusal.
  • All of that said, Scalia's refusal to recuse himself because he isn't absolutely required to do so is extremely unwise and reflects poorly upon his exercise of judicial discretion. As I remarked a few days ago, the standard to be applied is not whether there exists an actual conflict, but whether a reasonable person might believe that there appears to be a conflict. Justice Scalia undoubtedly knows more about the "real facts" than does virtually anyone else. The problem is that the "advisability" issue looks beyond the "real facts" to how someone in possession of a general understanding, but not all of the technical details, might perceive matters. The standard in the statute is far too loose to require recusal; but the proper standard ("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") indicates that the inquiry isn't over, because the determination that there is "no actual conflict" was not made by a disinterested party.

I have lost a great deal of respect for quite a few commentators, and some respect for Justice Scalia, because they seem unable to grasp that appearances and "reality" may indicate different outcomes for the same inquiry. Because conflicts of interest are to be avoided precisely because of the appearance of bias that they create—even in the case of the most ethical, fairminded decisionmakers who have ever existed, whoever they may be—the appearances should trump the not-quite-satisfactory determination that there is no "actual conflict." This is a discretionary function. I do not believe that Justice Scalia has appropriately exercised his discretion in this matter. That is not a "high crime" that justifies removal from office, by any means. Every judge (at least arguably) misuses his or her discretion at some time or another; imperfection is part of the price of being human. That some cases are reversed even under the "abuse of discretion" standard of review more than demonstrates this: the existence of the standard of review should be sufficient ab initio. It's that nasty old "substance/procedure" distinction again. I have little surprise at this result, which was predictable from Justice Scalia's prior jurisprudence; neither have I much surprise that the reason has been ignored by virtually everyone due to their partisan preconceptions.