Friday, June 02, 2006

Scalia Should Always Recuse Himself

He apparently doesn't know anything about anything regarding language, law or history.

When, at the Conversations on the Circle interview with Supreme Court Justice Scalia, Franken ribbed Scalia about his "demeanor" in not recusing himself from hearing his good pal, Dick Cheney's, case, Scalia chided him.
"Demeanor is the wrong word. You mean ethics." Then he explained, "Ethics is governed by tradition. It has never been the case where you recuse because of friendship."

But The Nation disagrees with the Justice:
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?
First, there's the ABA's Model Code of Judicial Conduct, which is written down in black and white, not left to "tradition." But since the ABAMCJC doesn't specifically apply to the highest court, the Supreme Court itself spoke to the issue in 1994:
... 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.

I think PWNED! would be the appropriate word in this instance.

But wait, there's more.

At the cocktail party afterwards, as reported by Prairie Weather, Franken again confronted Scalia, pointing out that:
... before Roe, there was nothing in the Constitution to prohibit abortion. Scalia, furious, said "Wrong!" and ended the confrontation.
Here's a fact check for Scalia:
Contrary to popularly held beliefs, abortion is not historically steeped in illegality. In colonial America there were actually no written laws banning abortion. It was rather loosely controlled by common law (unwritten laws handed down over generations). Abortion was permitted so long as it was done before quickening occurred. Quickening referred to that point in time when a woman could feel movement of the fetus (usually around the fifth month).
Another source:
In colonial America, during the seventeenth and eighteenth centuries, abortions were not explicitly prohibited by law and were considered both legal and moral if preformed before quickening ("the first perceptions of fetal movement by the mother").
I heard the part on Franken's show today where he brought on an expert in early American law who said he could find only one time when a Founder dealt with an issue even vaguely related to abortion. The law would have required an unwed mother to have a witness to a stillbirth, to ensure she didn't smother the child herself. Alexander Hamilton argued that it would be an undue burden on single women, since it would require an unwed mother to make her situation known, opening her to negative social consequences. Being an illegitimate child himself, Hamilton was keenly sensitive to such an issue. The law was not passed.

So the only time the Founders even came close to dealing with the issue, privacy took precedence.

Finally, Prairie Weather went on to make a good case for Franken's foolishness
... the right wing press is doing its best to demolish Franken over his "foolish" confrontation with Scalia. Franken, of course, is an excellent fool, and in this case I'm referring to that old royal tradition of having a fool to confront the king, tease him into an awareness of reality.

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