Recuse Me?

Nino Scalia should recuse himself from a lot more cases, if you ask me. But he still deserves substantial criticism for his conduct in the compulsory Pledge of Allegience case. Followers of judicial hypocrisy will recall Scalia's position on judges who oppose the death penalty on moral grounds.

Scalia, who insisted he was �judicially and judiciously neutral� toward capital punishment, said that he did not find the death penalty immoral. �I am happy to have reached that conclusion,� he continued, �because I like my job and would rather not resign.�

Earlier Scalia had said, �In my view, the choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty.�

But Scalia is guilty of the same misconduct as the hypothetical judges he criticized.

From today's New York Times:

The Supreme Court's action today had several unusual elements that could have an impact on the eventual outcome. One was the decision by Justice Antonin Scalia not to participate in the case, an evident if unacknowledged response to a "suggestion for recusal of Justice Scalia" that Mr. Newdow sent to the court last month.

Mr. Newdow cited news reports of remarks the justice made at an event in Fredericksburg, Va., last January that was co-sponsored by the Knights of Columbus, the Catholic organization that a half-century ago played a leading role in persuading Congress to add "under God" to the pledge. According to the reports, Justice Scalia's speech at "Religious Freedom Day" pointed to the Ninth Circuit's decision in this case as an example of how courts were misinterpreting the Constitution to "exclude God from the public forums and from political life."

Mr. Newdow, who is a lawyer and medical doctor who has represented himself in the litigation, told the court that the remarks indicated that Justice Scalia was not just expressing general views on the Constitution but had formed a conclusion about the case itself, providing grounds for disqualification. The code of judicial conduct and a federal law that incorporates it both provide that judges "shall disqualify" themselves in cases where their "impartiality might reasonably be questioned."

Scalia knew that the Ninth Circuit case might -- and likely would -- come to the Supreme Court when he spoke those words. Despite that knowledge, he chose to criticize the Ninth Circuit ruling at a Catholic event. By his conduct, Scalia disqualified himself from being able to review the law applied by the Ninth Circuit. When Scalia was faced with the choice between speaking out on an issue of importance to him and fulfilling his judicial duty to rule on all cases to come before the Supreme Court, he opted for the former. He didn't resign, as he suggested other judges must do in such circumstances, he gave himself a pass for just one case. (Could not anti-death penalty judges opt to recuse themselves from death cases and draw their salary hearing antitrust and tort cases instead?)

Scalia and his supporters might claim that he is doing the right thing because he certainly would have voted for compulsory inclusion of God in the PofA, and is willing to put an impartial resolution above his own personal desire as to the outcome. To which I would respond: bullshit. Scalia knew what his job required when he accepted it, and deliberately chose to act in a matter which would required recusal. He committed misconduct when he spoke, and his later recusal doesn't change that. If he was unwilling to give up his right to prejudge cases he shouldn't have taken the job. And if he voluntarily places himself in a position where he cannot fulfill all of his job duties, he should resign.