Ethical lines in shifting sand
By DS Gands
Mar 23, 2004
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Given the naďve perspective of the general masses regarding the judicial system, it seems particularly irritating that ‘Nino’ Scalia, Supreme Court Justice, has refused to recuse and cited a chummy past with the requesting attorney as a portion of the argument.  In effect, it all boils down to the pot calling the kettle black.

State and local judges are elected, for the most part, and live where they serve.  It stands to reason that since they are also human, they have a life outside the confines of their profession – or service – however you choose to characterize it.  Bottom line – they have friends, and those friends have friends, and so on.  They have co-workers and employees within the respective systems, and those people have family and friends, too.  The intertwining of life and relationships exists without question, but to be a judge and a part of that given is an unavoidable recipe for doubt.  It would leave them in a precarious positionwere it not for ethics rules.  However, these questions seem to be handy tools for the disgruntled, antagonistic, or those looking for an angle.  These activities and actions call into question the clarity of ethical lines in the shifting sands of justice.

Though Supremes are not required to publish explanations regarding recusals, Antonin Scalia has written a 21 page stinging rendition ofhis position regarding the energy case and the duck-hunting trip with VicePresident Cheney, on which a Sierra Club attorney requested his recusal.   Taking the position to recuse a local judge on a civil suit because he attended a poker game with a party of a suit in hiscourt is one thing.  Recusing an appointed Supreme Court Justice from a Federal Case that involves Federalissues because he has, as he wrote, ‘social intercourse’ with a person associated with the case is quite another matter, indeed.   As far as lines go, it’s the difference between chalk on the sidewalk and the Grand Canyon.

There really is not any solution to suspending the personal life of a judge while he is seated to avoid conflict concerns.  There are rules in place to assure that any concern for possible impropriety or burden of influence shall be addressed andresolved, not only to protect the judge and parties of any given suit, but the judicial system as a whole.  Scalia’s  position may prove harmful to the integrity of the Supreme Court, and could be viewed as abusive.  Regardless of whether his relationship with Cheney would influence his judgment on the case, the honorable and responsible conclusion is that he should have stepped aside.

Judges are people who are held to the highest standard.  They are the persons selected to determine the fate of any given dispute brought before them in a process designed to seek truth through blind and balanced justice.  We must trust that they do not allow the friendships and favors of personal and professional relationships to sway their opinions in a suit, and the way we develop trust is through their performance while on the bench.  Doubt is often the first cousin of any evaluation of a judge, because, after all, we are human, too, and we all have our faults.

A larger concern looms large on the horizon, with regard tothe Supreme Court as Rehnquist, O’Connor and Stevens approach possible retirements.  If Scalia sets a precedent for recusal that thwarts any consideration of honor or responsibility, replacements for the upcoming vacancies will be crucial to assure that integrity of the Court can bemaintained.  

This specific case for recusal of Justice Scalia is a double-edged sword that has been answered by his own admission.  He duck hunted with Cheney on a personal trip, and he exposed a letter addressing him on a personal level from the very lawyer who has requested his recusal in which that attorney asked him to speak to a law class and addressed him by his nickname in addition to sending his regards to Mrs. Scalia.  

So, with that in mind, Scalia must be saying that it’s only unethical if the judge knows people on one side of a suit?  By knowing people on both sides there is balance on some level?  With this one,the scales are in a state of perpetual tipping and the blindfold is off.  

Ethical lines drawn in the shifting sands of the judicial system must be upheld by those to whom they apply and altered only by the collective consideration of those in charge of them.   They should never be ignored and should be protected from blowing sands stirred by hot air.

There isn’t enough sand in Iraq to fill this canyon.