{"id":5265,"date":"2006-04-13T15:28:49","date_gmt":"2006-04-13T19:28:49","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/formerlyknownas\/2006\/04\/13\/scalia-chin-flicks-appearance"},"modified":"2011-08-05T14:54:00","modified_gmt":"2011-08-05T18:54:00","slug":"scalia-chin-flicks-appearance-of-impropriety-rule","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2006\/04\/13\/scalia-chin-flicks-appearance-of-impropriety-rule\/","title":{"rendered":"Scalia chin-flicks “appearance of impropriety” rule"},"content":{"rendered":"

<\/a><\/p>\n

\n
J<\/em><\/strong>ulius Caesar — Antonin Scalia’s ancient\u00a0paisano and fellow conservative <\/span><\/div>\n
government <\/span>official — understood very well the concept of\u00a0the “appearance <\/span><\/div>\n
of impropriety.”\u00a0 Ask his second wife<\/a>. <\/span> For judges in our country, of course, <\/span><\/div>\n
the rule has always been that you avoid even the appearance of impropriety, <\/span><\/div>\n
especially when it comes to potential conflicts of <\/span>interest in a case directly <\/span><\/div>\n
before you.\u00a0 [E.g.,<\/em> you recuse yourself when a personal <\/span>friend is the primary <\/span><\/div>\n
defendant in a case.]<\/span><\/div>\n<\/blockquote>\n
\"ScaliaHandGesture\" original<\/strong><\/em><\/span><\/a><\/span><\/p>\n
Peter Smith\/Boston Herald<\/em><\/span><\/span><\/div>\n
\n
<\/span><\/div>\n
Most Americans believe Supreme Court justices should be held to <\/span>the <\/span><\/span><\/span><\/div>\n
very highest ethical standards<\/span> (especially at a time of intense polarity <\/span><\/span><\/span><\/div>\n
and partisanship,\u00a0with a deep suspicion that the Court has become too <\/span><\/span><\/span><\/span><\/div>\n
politicized).\u00a0The higher standard seems\u00a0most\u00a0appropriate in recusal sit-<\/span><\/span><\/span><\/span><\/div>\n
uations, where <\/span><\/span>the judge is totally unaccountable to anyone but himself <\/span><\/span><\/span><\/div>\n
or herself. <\/span><\/span><\/span><\/div>\n
<\/span><\/span><\/div>\n
\n<\/div>\n
Justice Scalia seems to believe\u00a0that he<\/span> <\/span>deserves<\/em> <\/span>to be trusted more, because<\/em><\/span><\/span><\/span><\/span><\/div>\n
he is a member of the nation’s most powerful court\u00a0(a <\/span>notion surely at <\/span>odds <\/span><\/span><\/span><\/span><\/div>\n
with the Framers he seems to so admire).\u00a0 Therefore, <\/span>Scalia declared <\/span>last <\/span><\/span><\/span><\/span><\/div>\n
night that his\u00a0“proudest thing<\/em>” as a\u00a0Supreme Court Justice <\/span>was his 2004 <\/span><\/span><\/span><\/span><\/div>\n
decision not to recuse himself from a case involving Vice President <\/span>Cheney, <\/span><\/span><\/span><\/span><\/div>\n
who is a personal friend of his.\u00a0(AP<\/span>\/Washington Post<\/span><\/em><\/a>, <\/span>April 13, 2006)<\/span><\/span><\/span><\/span><\/span><\/div>\n
\n<\/div>\n
<\/span><\/span><\/span><\/div>\n
\"ScaliaDissent\"<\/span><\/span><\/span><\/span><\/span> Many law-related weblogs will surely continue to comment on this remark. <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
See, e.g.,<\/em> WSJ’s LawBlog<\/em><\/a> (Joseph Schuman); Crime & Federalism<\/a><\/em> (Norm <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
Pattis);\u00a0Inside Opinions<\/em><\/span><\/a> (Bob Ambrogi).\u00a0 It is a wonder that a jurist so proud <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
of his mental capacities and linguistic skills would choose such a sad little <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
moment to call his proudest.\u00a0 Perhaps the reason is a sense of embarrass-<\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
ment over the recent “chin flick<\/em>” incident (covered in detail by us here<\/a> – and, <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
yes, he was\u00a0lewd and obscene). <\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
<\/span><\/span><\/span><\/span><\/span><\/div>\n
\n<\/div>\n
By <\/span>pointing to his Cheney Recusal\u00a0Refusal, <\/span>Scalia might be trying to say: <\/span> <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
\n
\n
“Yeah, I wasn’t man enough to own up to making an<\/em><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
obscene-rude-lewd gesture at a Church, and I did send <\/em><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
out a Supreme Court Spokeswoman to protect my rear, <\/em><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
but I sure stood up to those ethics mamby-pambies <\/em><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
and leftist do-gooders in the Cheney case.”<\/em><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n<\/blockquote>\n<\/blockquote>\n
Justice Scalia as Judicial Macho Man.\u00a0 Makes-a me proud to be an\u00a0Italo-<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
American <\/span>lawyer. I think two Comments at WSJ’s LawBlog<\/em><\/a> captured the recusal\/ethics issu <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
succinctly and well:\u00a0\u00a0 <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
\"honest\"<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
\n
Scalia puts the cart before the horse. You aren\u2019t supposed to trust <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
a judge so that he shouldn\u2019t recuse himself, he recuses himself so <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
that you can trust him. <\/strong><\/span>Comment by<\/strong> Stephen<\/strong> – April 13, 2006 at <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
11:19 am <\/span><\/a><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
\n<\/div>\n
Stephen\u2019s comment is exactly right. Scalia\u2019s \u201ctrust me despite the <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
appearance of impropriety\u201d theory is, sadly, exactly why there are <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
recusal rules. Recusal is not an admission of conflict; its a recognition<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
that in the judicial system, the perception of conflict undermines the <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
authority of the courts as much as an actual conflict. <\/span>Comment by<\/strong> <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
Debra<\/strong> – <\/span><\/span>April 13, 2006 at <\/span>11:30 am<\/span> <\/span><\/span><\/span><\/a><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n<\/blockquote>\n<\/blockquote>\n

<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n<\/div>\n

Of course, maybe Antonin Scalia is just being crafty.\u00a0 Maybe he wants<\/em> to undermine the <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
authority of the Court.\u00a0 In which case, his words and antics are right on target.\u00a0 We need <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
to make sure the American public knows that Antonin Scalia is not representative of our <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
Supreme Court, either today or historically.<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
\n
\n
\n
<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
For some reason, thoughts of Justice Scalia often lead me <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
to a theme touched upon\u00a0frequently in the more earthy haiku <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
of Master Issa:<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n

<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

little chestnuts
\npissed on by the horse…
\nshiny new<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n

hey boatman
\nno pissing on the moon
\nin the waves!<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/p>\n

\n
\n
\n
<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
\n
laugh at my piss
\nand shudder…
\nkatydid<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n<\/blockquote>\n
\n
<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n

<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/p><\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n

Issa<\/span><\/a>, translated by <\/span>David G. Lanoue<\/span><\/a><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
If Scalia brings out similar emotions in you, <\/em><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
Issa has three dozen haiku on the topic <\/em>here<\/em><\/a>.<\/em> <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
If Nino makes you think #2<\/a>, Issa has you covered. <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
\n
\"MeNeFrego\" Me Ne Frego<\/a> (Italian Hand Gestures) <\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n
\n
\n
\n
\n
<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n
<\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/div>\n","protected":false},"excerpt":{"rendered":"

Julius Caesar — Antonin Scalia’s ancient\u00a0paisano and fellow conservative government official — understood very well the concept of\u00a0the “appearance of impropriety.”\u00a0 Ask his second wife. For judges in our country, of course, the rule has always been that you avoid even the appearance of impropriety, especially when it comes to potential conflicts of interest in […]<\/p>\n","protected":false},"author":94,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[2926],"tags":[],"class_list":["post-5265","post","type-post","status-publish","format-standard","hentry","category-pre-06-2006"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p6kP1R-1mV","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/5265","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/users\/94"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/comments?post=5265"}],"version-history":[{"count":1,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/5265\/revisions"}],"predecessor-version":[{"id":12689,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/5265\/revisions\/12689"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/media?parent=5265"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/categories?post=5265"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/tags?post=5265"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}