The New Republic

This week, Justice Antonin Scalia sat out on the Pledge of
Allegiance case and refused to recuse himself from a case involving
Vice President Dick Cheney's energy task force. On balance, both
decisions were perfectly defensible. But the same bullying
overconfidence, lack of self-discipline, and failure of judicial
temperament that led Scalia to blurt out in advance his views on
the Pledge case also marred his overly combative apologia in the
Cheney case. Indeed, Scalia's increasing inability to respect the
difference between his public role as a judge and his private
musings as a pundit suggest that the best thing he could do to
answer doubts about his impartiality in the future is simply to
keep quiet.The question in the Cheney case is whether the vice president can be
forced to disclose details of the meetings of his energy task force
in the spring of 2001. The Sierra Club asked Scalia to recuse
himself because he is a friend of the vice president and invited
him on a private duck-hunting trip before the Court agreed to hear
the case. In an opinion on March 18 justifying his refusal to
recuse, Scalia noted that justices have long been friends with
executive branch officials (and may well have been appointed
because of their friendship) and felt free to continue to socialize
with them even when they appeared as litigants before the Court.
"While friendship is a ground for recusal of a justice, judge, or
magistrate where the personal fortune or the personal freedom of
the friend is at issue, it has traditionally not been a ground for
recusal where official action is at issue," Scalia wrote. In other
words, if Cheney were sued for sexual harassment in his private
capacity, Scalia might be willing to recuse himself, but, because
he is being sued for abusing his discretion as the head of the task
force, Scalia concludes that no reasonable person can question the
justice's impartiality.

In fact, the line between Cheney's personal and official capacity is
hardly as bright as Scalia suggests--thanks largely to the
Republican assault on executive privilege during the Clinton years.
The central question in the Cheney case is whether the U.S. Court
of Appeals in Washington, D.C., was correct, in 1993, to hold that
Hillary Clinton's decision to include private consultants on her
health care task force converted it from a presidential working
group, whose deliberations would be protected from disclosure by
federal law, into an outside advisory committee, forced to open its
deliberations to the public. Now that the shoe is on the other foot,
the Bush administration is asking the Supreme Court to overturn the
Clinton precedent as a violation of the separation of powers. If
the Court decides that what was good for the first lady is good for
the vice president, it might conclude that Cheney's decision to
include private energy consultants on his energy task force also
deprives him of the right to keep its deliberations secret. Scalia
insists that a decision along these lines would affect Cheney only
in his official capacity--that is, there might be political
consequences if it were revealed that he exceeded his authority by
including his energy industry cronies on the task force, but no
possibility that his personal reputation or integrity could be
affected.

This assumes, of course, a rather firm distinction between Cheney's
public and private interests and actions. And it was precisely this
distinction that Republicans attacked during the Clinton years.
Recall that the entire premise of the Clinton impeachment--the
claim that got Paula Jones into Court in the first place--was that
Clinton's official misconduct as governor (depriving Jones of her
constitutional rights by hitting on her) was severe enough to
deprive him of the immunity that presidents can normally expect for
their official acts. In his separate opinion in the Jones case,
Justice Stephen Breyer shrewdly observed that, since the private
and public spheres are now regulated by "increasingly complex sets
of statutes, rules and regulations," the distinction between public
and private conduct is increasingly elusive. All this calls into
question Scalia's attempt to rely so heavily on the embattled
distinction and makes his historical analogues seem like the relics
of a distant era.

If Scalia had more humility, he might have acknowledged the
difficulty of maintaining friendships with executive officials in a
post-Clinton era but argued that it is precisely because the
distinction between public and private conduct is under siege that
it is important not to allow the appearance (rather than the
reality) of impropriety to force judicial recusals. Otherwise, as
Scalia suggests, a mere allegation of impropriety by the press might
be enough to force a justice off any case involving a White House
official. But Scalia goes far beyond this modest argument. In page
after page, he ridicules his critics, lashes out at the public, and
vilifies anyone who might question his motives. Combining self-pity
with self-righteousness, he unnecessarily editorializes about the
case ("there is nothing illegal or immoral about making
'energy-industry executives' members of a task force on energy; some
people probably think it would be a good idea"), blusters against
the press ("the implications of this argument are staggering"), and
hyperbolically suggests that only a fool or an "investigative
journalist" could disagree with him. In the process, he does more
to undermine public confidence in his own judicial temperament than
did the duck-hunting trip itself.

This is not the first time Scalia's extrajudicial musings have
called his judgment into question. He was moved to recuse himself
in the Pledge case, which asks the Court to decide whether the
insertion of the words "under God" violates the First Amendment,
because of a stump speech to the Knights of Columbus last year. In
the speech, he asserted glibly that the nation's founders never
meant to "exclude God from the public forums and from political
life," adding that nondenominational acknowledgments of God by the
government "reflect the true tradition of religious freedom in
America--a tradition of neutrality among religious faiths." (In
addition to being inappropriate--Scalia was criticizing a
lower-court ruling he should have known would come before the
Court--this was a gross oversimplification of a complicated
historical debate.) And these polemical musings are not limited to
Scalia's extrajudicial speeches; increasingly, he acts more like a
pundit than a judge in his opinions as well. In his addendum to the
Court's stay of the manual recounts in Bush v. Gore, Scalia
announced that the recount would "cast a cloud upon what [Bush]
claims to be the legitimacy of his election." As it turned out,
Scalia's prediction was wrong--the manual recount sponsored by the
media suggested that the counting standard Gore asked for would
have elected Bush, not Gore, increasing rather than undermining
Bush's legitimacy. (And, in any event, Bush's legitimacy was
affected less by the Court than by September 11, 2001.) But, like
the garrulous faculty colleague who can't restrain himself from
spouting off on an e-mail list, Scalia couldn't resist putting in
his two cents.

Scalia is not the only extremely intelligent judge whose inability
to resist expressing any thought that pops into his head has
undermined his own effectiveness. Richard Posner, who sits on the
U.S. Court of Appeals for the Seventh Circuit, offers another
cautionary tale: In a self-congratulatory diary on Slate.com two
years ago, Posner provided such a smug account of his diligent work
habits and his pragmatic approach to judging that he seemed to
vindicate the wildest fears of critics who accuse him of measuring
the law purely by its practical consequences. Like Scalia, Posner
shows the dangers of judges who succumb to the temptations of
punditry. Pundits offer simplified, self- confident, and often
partisan assessments of complicated issues. These qualities are the
opposite of the judicial virtues--humility, self-abnegation, a
tolerance for complexity, and a willingness to acknowledge both
sides of an argument. As old hierarchies collapse, many government
officials are succumbing to the market pressure to turn themselves
into public personalities. (Consider the recent tell-all impulse
demonstrated by former administration officials Paul O'Neill and
Richard Clarke.) But that's why it's all the more important for
judges to preserve their special role in U.S. democracy by resisting
these public pressures and restraining themselves.

"One of the reasons that courts are held in generally high esteem is
that they are not in the public consciousness very often, and one
doesn't see that, lo and behold, they're made up of frail human
beings like every other governmental institution," Scalia said in
one of the last TV interviews he granted, to c-span in 1986.
"Judges ought to make an effort to avoid becoming public figures,
because it's not their personalities or their particular viewpoints
that they are supposed to be promoting." It's unfortunate that the
longer Scalia remains on the bench, the less he follows his own
advice.

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