(The Nation) 

Yet, when Franken raised the issue at the Conversation on the Circle event, according to the Post, Scalia "chided Franken as if he were a delinquent schoolboy." And Time Warner chairman Dick Parsons said of author: "Al was not quite ready for prime time."

In fact, it was Scalia, not Franken, who was caught with his ethics down.

Scalia took issue with the comic's use of the word demeanor. "Demeanor is the wrong word. You mean ethics," the justice claimed, before adding that, "Ethics is governed by tradition. It has never been the case where you recuse because of friendship."

Actually, Scalia was wrong on all accounts. Because U.S. Supreme Court justices decide when to recuse themselves for ethical reasons, they operate under looser standards and softer scrutiny than other jurists. Thus, the term "demeanor" was precisely correct. Legal dictionaries define "demeanor" as one's "outward manner" and "way of conducting oneself." By any measure, with his refusal to recuse himself from a case involving his friend Cheney, Scalia chose to conduct himself in an unethical manner.

How do we know that?

The American Bar Association's Model Code of Judicial Conduct, certainly a reasonable measure for such decisions, is blunt with regards to these questions, stating that:

1.) "(A judge) shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

2.) "A judge shall conduct all of the judge's extra-judicial activities so they do not cast reasonable doubt on the judge's capacity to act impartially as a judge."

3.) "A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment."

4.) "(A judge shall not) convey or permit others to convey the impression that they are in a special position to influence the judge."

Unfortunately, the ABA's model code does not apply — in any official sense — to high court justices.

But there is still no question that Scalia should have recused himself. The standard for U.S. Supreme Court Justices was set by the court itself in a majority opinion in the 1994 resolution of the case of Liteky v. United States. According to that opinion, recusal is required where "impartiality might reasonably be questioned." The opinion set a high standard, declaring that what matters "is not the reality of bias or prejudice, but its appearance."

Who was the stickler for ethics who wrote those words?

Justice Antonin Scalia.

By John Nichols
Reprinted with permission from The Nation.

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