RECUSAL

Which do you think has done -- or will have done, ultimately -- more damage to the "people['s] confidence in the integrity of the Justices":

a) Scalia's refusal to recuse himself in the Cheney litigation, or

b) Bush v. Gore?

I'm not being facetious. I expressed my own doubts about the necessity of Scalia's recusal in the Cheney case (see here); I also expressed my doubts about the necessity of a recusal in the Pledge case, here, but for a more cynical reason: judicial impartiality is a myth that should be punctured. I'm not secure in that last claim, by any means, although Bush v. Gore made the claim more attractive to me. If the Court is going to interject itself needlessly in order to choose a President, then they deserve all the impartiality-myth-puncturing scrutiny that they get. I think that mostly on my angry days.

But if judicial impartiality is the question, Scalia is right to argue that the decision over recusal is one that is bound up with the creation of images of judicial impartiality, and that acquiescence in the present recusal motion could harm that image in the long term. Scalia writes:

My recusal would also encourage so-called investigative journalists to suggest improprieties, and demand recusals, for other inappropriate (and increasingly silly) reasons. The Los Angeles Times has already suggested that it was improper for me to sit on a case argued by a law school dean whose school I had visited several weeks before--visited not at his invitation, but at his predecessor's. See New Trip Trouble for Scalia, Feb. 28, 2004, p. B22. The same paper has asserted that it was improper for me to speak at a dinner honoring Cardinal Bevilaqua given by the Urban Family Council of Philadelphia because (according to the Times?s false report) that organization was engaged in litigation seeking to prevent same-sex civil unions, and I had before me a case presenting the question (whether same-sex civil unions were lawful?--no) whether homosexual sodomy could constitutionally be criminalized. See Lawrence v. Texas, 539 U. S. ___ (2003). While the political branches can perhaps survive the constant baseless allegations of impropriety that have become the staple of Washington reportage, this Court cannot. The people must have confidence in the integrity of the Justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, and in an atmosphere where the press will be eager to find foot-faults. (emphasis added, footnote omitted; the quote is from pages 18-19 of the memorandum opinion issued yesterday, PDF file here)

The acerbic tone is of course vintage Scalia, and I haven't followed up on his description of events, but leaving all that aside, we do have a culture of journalistic scandal and the press has had a mini-frenzy over the recusal issue. Scalia's contentious public persona is a contributing factor, to be sure, but the broader causes have to do with the structure of reporting combined with a Court that has been in the political spotlight. Justices are stewards of the Court as an institution; they need to be concerned with how their actions will affect the public image of the Court. In an aggressive media environment titled toward scandal, this task of stewardship can be tough.

But in this light, Bush v. Gore looks even more strange. Consider the following quote from Scalia yesterday:

To be sure, there could be political consequences from disclosure of the fact (if it be so) that the Vice President favored business interests, and especially a sector of business with which he was formerly connected. But political consequences are not my concern, and the possibility of them does not convert an official suit into a private one. That possibility exists to a greater or lesser degree in virtually all suits involving agency action. To expect judges to take account of political consequences--and to assess the high or low degree of them--is to ask judges to do precisely what they should not do. It seems to me quite wrong (and quite impossible) to make recusal depend upon what degree of political damage a particular case can be expected to inflict. (9-10; emphasis added)

Then consider Scalia's infamous justification for granting the December 9, 2000 stay that effectively decided the election in favor of Bush:

The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires. (PDF file here)

Why isn't Scalia showing concern for the "political consequences" of the Court's actions in the Bush v. Gore case, albeit concern for consequences of a "high" degree? Scalia just told us yesterday that the political branches can weather the assaults of the press and resulting public doubts (see above). So, again, why was it proper for the Supreme Court to worry about political consequences to George Bush -- especially when there were alternate, established procedures for dealing with the precise kind of controversy at issue? Recall that Congress -- not the Court -- is explicitly charged with the responsibility of determining the validity of slates of electors.

I don't want to be unfair. You might say that Scalia's concern for the political legitimacy of the Court is analogous to his concern for the legitimacy of George Bush's presidency in 2000. At some point, though, the distinction between "political consequences" and "legitimacy" breaks down. According to Scalia, the Justices are not supposed to care about "political consequences," but they are supposed to care about "legitimacy," at least where the legitimacy of the Court is concerned. But in the light of those concepts, Bush v. Gore looks pretty bad.

MORE: perhaps I should have compared a hypothetical recusal in this case -- and all the nastiness that Scalia says would go with it -- to Bush v. Gore. The latter still probably harmed the Court more than the former would.