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Al Franken Overrules Antonin Scalia | The Nation

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John Nichols

John Nichols

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Al Franken Overrules Antonin Scalia

Supreme Court Justice Antonin Scalia is, supposedly, a very smart man.Indeed, he is frequently referred to as the intellectual giant on the current highcourt.

Yet, when Scalia was confronted by comedian and social commentator AlFranken with a basic question of legal ethics, it was the funny man, not the"serious" jurist, who proved to be the most knowledgeable.

The confrontation took place last week in New York City, where Scalia was theguest of Conversations on the Circle, a prestigious series ofone-on-one interviews with Norman Pearlstine, the outgoing Time Inc.editor-in-chief.

After Pearlstine tossed a predictable set of softball questions to thejustice, the session was opened to questions from the audience. Up poppedFranken, the best-selling author and host of Air America's The Al FrankenShow.

According to a scathing article that appeared in the Scalia-friendly NewYork Post, "Franken stood up in the back row and started talking about‘judicial demeanor' and asking ‘hypothetically' about whether a judge shouldrecuse himself if he had gone duck-hunting or flown in a private jet with aparty in a case before his court."

Franken's reference was to Scalia's refusal to recuse himself fromdeliberations involving a lawsuit brought by public-interest groups thatsaid Vice President Dick Cheney engaged in improper contacts withenergy-industry executives and lobbyists while heading the Bush administration task force on energypolicy. A federal court ordered Cheney to release documents related to his work with the task force, at which point the Bush administration appealed to the Supreme Court.

After the administration filed its appeal but before the court took the case, Cheney and Scalia were seen dining together in November, 2003, at an out-of-the-way restaurant on Maryland's eastern shore.

After the court agreed to take the case, Cheney and Scalia spent several days in January, 2004, hunting ducks at a remote camp in Louisiana.

Watchdog groups called for Scalia to recuse himself -- Charles Lewis, director of the Center for Public Integrity, argued that fraternization involving a justice and a litigant with a case before the court "gives the appearance of a tainted process where decisions are not made on the merits" -- but the justice responded by announcing that, "I do not think my impartiality could reasonably be questioned."

Several months later, Scalia and the other justices remanded the case back to the appellate court for further consideration -- a decision that effectively made the issue go away during the 2004 presidential contest.

Scalia, a friend of Cheney's since the days when they worked together in the administration of former President Gerald Ford, had participated in a decision that was of tremendous benefit to the vice president in an election year.

Yet, when Franken raised the issue at the Conversation on the Circle event, according to the Post, Scalia "chidedFranken as if he were a delinquent schoolboy." And Time Warner chairman Dick Parsons said of author: "Al was not quiteready for prime time."

In fact, it was Scalia, not Franken, who was caught with his ethics down.

Scalia took issue with the comic's use of the word demeanor. "Demeanor is the wrong word. You meanethics," the justice claimed, before adding that, "Ethics is governed by tradition. It has neverbeen the case where you recuse because of friendship."

Actually, Scalia was wrong on all accounts. Because U.S. Supreme Court justices decide when to recuse themselves for ethical reasons, they operate under looser standards and softer scrutiny than other jurists. Thus, the term "demeanor" was precisely correct. Legal dictionaries define "demeanor" as one's "outward manner" and "way of conducting oneself." By any measure, with his refusal to recuse himself from a case involving his friend Cheney, Scalia chose to conduct himself in an unethical manner.

How do we know that?

The American Bar Association's Model Code of Judicial Conduct, certainly a reasonable measure for such decisions, is blunt with regards to these questions, stating that:

1.) "(A judge) shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

2.) "A judge shall conduct all of the judge's extra-judicial activities so they do not cast reasonable doubt on the judge's capacity to act impartially as a judge."

3.) "A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment."

4.) "(A judge shall not) convey or permit others to convey the impression that they are in a special position to influence the judge."

Unfortunately, the ABA's model code does not apply -- in any official sense -- to high court justices.

But there is still no question that Scalia should have recused himself. The standard for U.S. Supreme Court Justices was set by the court itself in a majority opinion in the 1994 resolution of the case of Liteky v. United States. According to that opinion, recusal is required where "impartiality might reasonably be questioned." The opinion set a high standard, declaring that what matters "is not the reality of bias or prejudice, but its appearance."

Who was the stickler for ethics who wrote those words?

Justice Antonin Scalia.

An expanded paperback edition of John Nichols' biography of Vice President Dick Cheney, The Rise and Rise of Richard B. Cheney: Unlocking the Mysteries of the Most Powerful Vice President in American History (The New Press: 2005), is available nationwide at independent bookstores and at www.amazon.com. The book features an exclusive interview with Joe Wilson and a chapter on the vice president's use and misuse of intelligence. Publisher's Weekly describes the book as "a Fahrenheit 9/11 for Cheney" and Esquire magazine says it "reveals the inner Cheney."

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