I’m behind the curve on this but feel compelled to comment.

Canon 2 of the American Bar Association’s Model Code of Judicial Conduct provides: “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.” (Emphasis added). The Commentary notes: ” The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.”

The Supreme Court is governed by 28 U.S.C. § 455, not the Model Code of Judicial Conduct. (In fact, two years ago the Court found portions of Minnesota’s version of the judicial code unconstitutional.) Justice Scalia’s order on the recusal motion also makes reference to a 1993 Statement of Recusal Policy, a statement that is “[a]vailable in Clerk of Court’s case file” but not, evidently, on-line or anywhere else readily accessible. Subsection (a) of the governing statute requires a judge to disqualify himself if “his impartiality might reasonably be questioned.” That sounds suspiciously like the test for “appearance of impropriety” in the Model Code. That is supported by the authority cited in the Sierra Club’s motion to recuse. It points out that the Supreme Court has held — in a majority opinion written by Justice Scalia himself — that in applying the statute “what matters is not the reality of bias or prejudice but its appearance.”

While Scalia disdains it, the media coverage certainly indicates reasonable minds could perceive that his impartiality is subject to question. But then, why should certain Supreme Court justices worry about any public perceptions of impropriety? After all, some of them had no problem telling us who our president was going to be, regardless of how we voted.

And a real interesting spin on Scalia’s recusal opinion appeared in Wednesday’s NY Times op-ed page.

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