Associate Justice Antonin Scalia is again in the midst of controversy with his decision to accept an invitation from Rep. Michele Bachmann (R-Minn.) to speak to incoming conservative members about the Constitution as part of their training. Bachmann, the founder of the House’s Tea Party Caucus, is leading efforts to repeal health care and seek new legislation based on a more conservative view of the Constitution. The decision to participate in such an event shows exceedingly poor judgment.
Scalia has long invited such criticism with his appearances at conservative conferences and personal trips. Indeed, as discussed in an earlier column, such questionable decisions probably blocked Scalia’s consideration as chief justice despite his being the intellectual leader of the right side of the Court.
The members of this Court appear to have an increasingly dismissive attitude toward their duty to avoid appearance of this kind. Justice Alito was recently (and justifiably) criticized for attending political fundraisers as well as his improper expression of disagreement with the President during a State of the Union.
Ultimately, this trend must be attributed to a failure on the part of Chief Justice Roberts to maintain core principles of neutrality and proper decorum on the Court. It is the duty of the Chief Justice to go to errant justices and emphasize these values. Instead, Roberts appears to have taken at best a passive role and at worst a supportive role in these controversies. I was astonished after the State of the Union controversy to see Roberts appear to support Alito instead of reaffirming the long-standing principle of complete neutrality in these speeches. Justice should not in my view even applaud at such events.
I was a bit surprised to see the president of the Ethics and Public Policy Center support Scalia on this issue despite the criticism of ethics and constitutional scholars. M. Edward Whelan, a former clerk to Scalia, told the LA Times below, appears to believe this is a purely subjective test:
“does he think it’s improper for any justice ever to speak to any group of members of Congress who might be perceived as sharing the same general political disposition?” If that is the test, there would be objective standard for justices and, so long as a justice takes a highly permissive or narcissistic view of such appearances, there would be no problem with any appearance. The EPPC is described on its website as
Washington, D.C.’s premier institute dedicated to applying the Judeo-Christian moral tradition to critical issues of public policy. From the Cold War to the war on terrorism, from disputes over the role of religion in public life to battles over the nature of the family, EPPC and its scholars have consistently sought to defend the great Western ethical imperatives — respect for the inherent dignity of the human person, individual freedom and responsibility, justice, the rule of law, and limited government.
However, Mr. Whelan in the update below has indicated that he does not endorse a subjective test and actually agrees with Gillers in the article linked below.
This particular appearance leaves the impression of an alliance between a conservative justice and conservative members in a Congress planning a series of measures based on a conservative reading of the Constitution. It undermines the integrity of the Court and I would be equally opposed to liberal justices participating in Democratic training sessions. Such participation leaves the appearance of a pep talk like a coach at the start of a game.
For full disclosure, I have regularly attended lunches with members of Congress where I have been asked to discuss constitutional questions. Rep. Bachmann has attended some of these lunches. I have always appreciated the ongoing interest in members in having a dialogue on the constitution and I credit Rep. Bachmann with her own desire to discuss such issues with new members. However, the ethical concerns in this particular speaker outweighs its educational value in my view. [Update: It appears that some conservative radio hosts are saying that I called Rep. Bachmann “bombastic.” Just for the record, that was the description of the reporter in the article below in a summary of my views on Scalia’s participation — not my own word. I would have been equally opposed to a democratic member incorporating a liberal justice. The controversy over this particular word from the reporters is in my view . . . well . . . bombastic].
UPDATE: Following this post, Mr. Whelan posted a response to clarify his remarks:
An article in today’s Los Angeles Times includes more commentary on the matter, including law professor Jonathan Turley’s observation that Scalia’s agreement to speak “suggests an alliance between the conservative members of the court and the conservative members of Congress.” The article also includes my puzzled response to Turley’s assertion:
“Does he think it’s improper for any justice ever to speak to any group of members of Congress who might be perceived as sharing the same general political disposition?” Whelan said. “My guess is that, schedule permitting, Scalia would be happy to speak on the same topic to any similar group* of members of Congress who invited him.”
Unfortunately, as a result of an editing error (in the current online version), the placement of my remarks gives the mistaken impression that I was disputing law professor Stephen Gillers, who is quoted for these eminently sensible remarks:
“In my view, a judge must take care not to speak only to groups on one side of the partisan divide,” said Stephen Gillers, a law professor at New York University. “I have no problem with such a talk so long as he avoids excessive identification with the Republican agenda.”
Meanwhile, I see that Turley has posted on his blog an item stating that he “was a bit surprised to see [me] support Scalia on this issue despite the criticism of ethics and constitutional scholars.” Two quick responses: (1) In my quoted comment, I was largely trying to understand the bounds of Turley’s proposition (though, given the editing error in the article, that wouldn’t have been clear to Turley). (2) My initial reaction is largely the same as Gillers’s, so it wouldn’t seem to be the case that I am standing against some consensus of “ethics and constitutional scholars” (not that that fact alone would particularly trouble me).
In a passage that may be garbled by some sort of glitch, Turley also faults me for “appear[ing] to believe this is a purely subjective test.” I confess that I can’t make heads or tails of his assertion; I don’t even know what “this” is referring to. I see nothing in my remarks that implies a “subjective test” (much less a “purely subjective test”). Maybe Turley thinks that I’m maintaining that it’s okay for Scalia to accept the invitation so long as he has the subjective intention of accepting similar invitations from other groups. But my point (and, I think, Gillers’s) is instead that it’s the broader pattern of speeches, not any isolated event, that matters.
* The actual comment that I provided to the reporter referred to “any similarly sized group,” not “any similar group.”
I appreciate Mr. Whelan’s clarification and I have noted it above as well. I actually have qualms with the position of Professor Gillers on this issue. I believe participation in such events inherently raises appearance problems. It is not a matter of a prohibition under the ethics rules but rather the underlying principles of the Court itself.
Source: LA Times
Jonathan Turley
rafflaw
I think you are right in this instance. I would think a judge or a justice should only inform when the information can best come from a judge or justice. Others can inform about the constitution specifically.
All in all it’s probably a good idea to give congress people, especially newies, a good grounding in the constitution, but Scalia’s the wrong messenger for this group.
Ms. Bachmann is now setting up an organization in Iowa. It just gets better and better. Someone needs to come up with an antidote for inflated egos. Quick!
Buckeye,
When a Justice is on the circuit making speeches to non-partisan groups, like law school graduation speeches, speeches to civic organizations and even all congressmen as you suggested would probably not lead to any appearance of impropriety. However, when you mention Bachmann’s name, you don’t have to look any farther than her nose. She is a partisan hack and to believe that this session is truly open to all Congress persons would be believing in the Easter Bunny. As Amity and LK suggested, this Whelan character and the organization EPPC are a front organization for extreme right wing Republican policies. This speech isn’t about learning what the Constitution says, it will be what Scalia wants the Teapublicans to think it says. Like his comment that was discussed on another thread, that women aren’t protected by the Constitution from Discrimination. Bachmann just wants to give the tea party folk the idea that she and the rest of the Teapublicans are giving the tea party what they are looking for. A return to the 1950’s.
The four far-right justices are not politically neutral (and Kennedy certainly wasn’t when he joined Bush v. Gore), so why should they pretend to be? If they exercised decorum, they might fool somebody.
Thanks Kay S.
Canon 4B is as follows:
B. A judge may appear at a public hearing before, or otherwise consult with, an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in the area. A judge acting pro se may also appear before or consult with such officials or bodies in a matter involving the judge or the judge’s interest.
Does this fit?
mcoville, srsly, you may want to broaden your understanding of ‘moral’ since your definition relies on a specifically environmental and temporal definition. That can lead to some pretty strange and repugnant outcomes like the Inquisition and the Chinese Cultural Revolution of the 60’s.
http://en.wikipedia.org/wiki/Morality
http://en.wikipedia.org/wiki/Ethics
Amityfessenden, you’re right, I visited the site also and and it’s a nest of hard right, neo-con activists. Following the money is always a good idea. Lot’s of luck getting to the truth of that. You’re right also about the prohibitions on political activity Whelans group seems to be disregarding. But people that don’t know that there is a double standard at work in the selective application of the law just haven’t been paying attention:
http://en.wikipedia.org/wiki/501(c)#501.28c.29.283.29
Thanks for he good posting AmityF.
**
I’m not surprised though that Whelan would jump on the Professor’s criticism. His other alternative would be to pounce on a the former Bush chief ethics officer Mr. Painter who said in the original article:
” “I don’t think it is appropriate for justices to meet with members of Congress, particularly in this highly partisan environment,” said Richard Painter, a law professor at the University of Minnesota who served as a chief ethics officer in the George W. Bush administration. ”
Whelan seems to be a well paid troll, arguing with whom the right would see as a likely demon of the left instead of taking on Mr. Painter. Reminds me of the punch-line to the old joke: ‘We’ve established what you are, now we’re just haggling over the price’. 🙂
kay,
That may be the funniest thing you’ve ever said.
It’s Scalia.
“Recuse” isn’t in his crooked vocabulary.
wouldn’t he just have to recuse?
rafflaw
He is certaintly free to speak anywhere he wants to, but as a judge, he has certain ethical restrictions to not appear to be favoring current or future litigants.
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If he speaks to an opposing political group, also, would that make it alright? It seems that all incoming freshmen could use a brushup on the constitution; I’m pretty sure my new congressman could. Professor Turley – think about it.
Who could be excluded as future litigants? Any college, political, business, or (_____) group could be a future litigant.
If that’s the case, it sounds to me like he must be prohibited from speaking about his profession to any group until he retires, since he couldn’t possibly arrange to speak equally to both sides of any litigation before such litigation even occurs.
That seems harsh, but maybe that is the price of being on the highest court?
Gyges,
I stand corrected!
eniobob,
I told you I was slow! I do understand..finally! I will blame it on old age!
raff:
No mispeeling,I took it to say that some of the new or seasoned congresspeople may find themselves at a defense table in the future.LOL!!
Rafflaw,
Nah, MCO never actually gave a definition. Apparently, showing curiosity about the views of other means you’re not worthy of actually hearing those views.
Or alternately he’s ashamed of what his definition is or, like pornography, simply “knows it when he sees it.”
Buddha and Gyges,
Well done. The Catholic Priests who abused children for years were moral people by mcoville’s definition, but they certaintly weren’t ethical. The people who have killed in the name of Christ or Allah or God, may be considered moral people by their particular faith, but killing someone for religious reasons is not ethical.
MCOville,
Should I just assume by your clumsy attempt to dodge the question while appearing to be superior, you can’t answer the question?
I can. A moral person is somebody who tries to abide by the laws and customs of his religion and culture. As a bonus, I’ll throw in my definition of an ethical person: Someone who does the least amount of harm to other life as possible while still protecting his own.
Your turn.
Buddha,
I agree. However, oddly enough, I’m pretty flexible with the definitions of the two words. Or, rather, I’m willing to let other people be flexible. It’s the only way to have this kind of discussion without turning it into a war of usages.
Also, I’d say that morals come from culture (which religion is part of) rather than only religion.
No.
You operate off a faulty definition of morals.
Nice try though. And by nice, I mean woefully insufficient.
Ethics are a branch of philosophy dealing with values relating to human conduct, with respect to the rightness and wrongness of certain actions and to the goodness and badness of the motives and ends of such actions.
Morals are an attempt to teach ethics by parable or edict such as the moral teaching or practical lesson contained in a fable, tale, experience, etc. For example, Christian morals. Or Islamic morals. Or Jewish morals. Or (insert your religion of choice) morals. Keep in mind, it was moral under the religious teachings of the Aztecs to commit human sacrifice to insure the sun would rise every day.
Reason versus religion.
Religion has no systematic checks. Just rule by fiat.
Reason does have systematic checks. Rule by reason.
Prove me wrong.
Buddha, you make too many assumptions in to what morals are and come to a false conclusion. Good try though.
mcoville,
Not necessarily.
Morals are religiously based edicts for behavior and ethics are rationally based edicts for behavior. Morals, like all religious edicts, can and are twisted on a regular basis to justify the irrationality of the speaker. Because ethics are based on logic and not some mystic formula from ages gone by, they are inherently less capable of distortion for bad purposes. An ethical person is an ethical person and those ethics may correspond to many morals, but a moral person is perfectly capable of distorting their religious beliefs to rationalize the unethical (for example, see Tootie’s perpetual homophobia compared to the concept that God is love). That makes them hypocritical. And hypocrisy is unethical no matter how you slice it . . . and usually immoral. I point to the the history of the RCC and the modern evangelicals (like our recent fur stealing pastor) for many examples of evil being done in under the guise of morality. Many wars and many deaths were started over morals by supposedly moral people. Ethics? Not so much. In fact, I can’t think of a single war started over ethics. Or a genocide. Or aiding and abetting pedophilia. Or torture to force conversions. Or stealing money. Or infidelity. Or . . . the list goes on and on.
While some morals may be ethical, they don’t have the backing of logic to act as a proof. Just belief. And belief is a pliant beast. Reason is not.
eniobob,
Did I mispell something there? I am pretty slow today so I am probably missing your point.
Buddha, I agree on the ethical person over the moral person comment.
If you have to ask what is a moral person, you are not one and this is not forum to teach you about it.
Buddha, a moral person is a ethical person.