In Judgment of the Judges
To no one’s surprise, U.S. Supreme Court Justice Antonin Scalia seemed to agree last week with his chum, Dick Cheney, whose lawyers had argued that the vice president was entitled to keep information from the public. For months, Scalia has arrogantly insisted that he alone should decide whether his friendship with Cheney creates an appearance of partiality that should cause him to withdraw from the case. Despite withering criticism, Scalia stayed put.
In this dispiriting climate, the American Bar Assn.’s hearing today in New York City on judicial ethics -- one in a series -- continues a much-needed public discussion of the standards to which judges should conform.
Every 10 years or so, the bar association reviews codes of judicial conduct that it first drafted in the 1920s. These codes are nonbinding guidelines, but the fact that many states, including California, have borrowed liberally from them in setting ethical rules for judges speaks to their influence.
Scalia’s obstinacy in the Cheney case makes this review timely. The court will soon decide whether the vice president can continue to withhold the names of the corporate bigwigs who helped him map the Bush administration’s energy policy in 2001. Cheney’s lawyers argued last week that “constitutional immunity” shielded the White House from most information demands.
Scalia has been pilloried for his each-man-is-an-island view of ethics, not just by TV pundits and in letters to the editor but by judges in courthouse lunchrooms across the country. To these men and women, Scalia’s unwillingness to step aside after his January duck-hunting trip with Cheney -- right after the court agreed to hear the vice president’s case and not long before the oral arguments -- clearly violated federal rules instructing a judge to disqualify himself “in any proceeding in which his impartiality might be questioned.” Their concern goes beyond Scalia; they fear that in the public mind, it casts a shadow on every judge.
The bar association has the responsibility to clear the air. Canon 2 of the group’s model code goes to the heart of the Scalia controversy: It directs judges to “avoid impropriety and the appearance of impropriety in all activities.”
Some have suggested recasting Canon 2 as a goal for judges rather than an obligation. Weakening this standard would be a mistake that would only encourage other judges to conclude, as Scalia apparently did, that fairness and impartiality are entirely relative concepts.
The association’s ethics panel has already heard from lawyers, judges and citizens at hearings across the country. More hearings are to come. Draft recommendations will be available for public comment this fall, with the final report to follow in early 2005.
For judges to retain the confidence of Americans, the review must result in tough and unambiguous ethical rules.