My friend and former Illinois colleague, Ron Rotunda is a leading legal ethics expert. On Sunday he weighed in on the Scalia recusal kerfuffle, coming down on the side of non-recusal:
There is a fair amount of case law interpreting the language Justice Scalia's attackers hurl against him. And the precedent says Justice Scalia is right.
For example, in a case interpreting this exact same language, the Pennsylvania Supreme Court held the judge in a murder trial did not have to disqualify himself simply because he knew the victim and was a mourner at his funeral. The convicted murderer did not like that result.
In another case, the complaining witness in an attempted rape prosecution was a high school classmate and "a close personal friend" of the judge's daughter, who attended the trial. The victim would also be maid of honor in the daughter's forthcoming wedding. The Oklahoma court held the judge acted properly in refusing to recuse himself. ... [Ed.: Numerous other examples omitted.]
There is a good reason courts, both state and federal, interpret the "appearance of impartiality" language objectively and narrowly. Judges do not divorce themselves from the world when they don their robes. They still are allowed to have friends, go on hunting trips and live a life.
Chief Justice Harlan Fiske Stone [did not] disqualify himself from cases involving President Herbert Hoover, although he was a buddy and a member of Hoover's informal "medicine ball" Cabinet. (They would throw medicine balls at each other before breakfast.) Nor did Justice Robert Jackson, who was a personal friend of Franklin D. Roosevelt and took vacations with him. Nor did Justice William O. Douglas, who was a poker buddy of FDR. Nor did Chief Justice Frederick Vinson, who was a poker buddy of Harry Truman's. Come to think of it, Justice Ruth Bader Ginsburg has given her name and presence to a lecture series cosponsored by the NOW (National Organization for Women) Legal Defense and Education Fund, an organization that often argues women's rights issues before Justice Ginsburg. Should she disqualify herself from issues involving women's rights?As Ron concludes, the Scalia flap is about partisan politics not judicial ethics.
