Quiet Please

Rosen, Jeffrey
April 2004
New Republic;4/5/2004, Vol. 230 Issue 12, p14
The author argues that the lack of discretion shown by Supreme Court Justice Antonin Scalia undermines his effectiveness on the bench. 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. 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. 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. 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.


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