Quiet Please

by Jeffrey Rosen | April 5, 2004

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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