Outside Counsel

Justice Scalia's decision on why he has declined to recuse himself is as disingenuous piece of work as anyone is likely to see anywhere. As usual, Dahlia Lithwick gets it spot on. It is easy enough to joke about this contretemps-- Lithwick thoughtfully provides a link to Letterman's Top 10 List-- but it is no laughing matter. So many things have gone horribly wrong in this country and in the world over the last three and a half years that it is almost possible for me to forget the sinking feeling I had as I read the decisions in Bush v. Gore, but the fact is that that bit of outcome determanative jurisprudence badly damaged the only American governmental institution left with a claim to a shred of credibility. I really have no complaint with Clinton's presidency, but his poor judgment shook the faith of a lot of people. Congress made a cartoon of itself over the whole thing, and then we had an election where the margin of error was smaller than the margin of victory. Into the breach stepped the Supreme Court-- the branch that depends the most on its reputation for probity, and the lot of them proceeded to demonstrate that there was no principle that any of them (except Stevens, g-d bless him) cared enough about to hang onto when the stakes were high enough. I think that one of the reasons that we have not seen a resignation from the Court in the ensuing three years is that the Justices themselves realized what they had done, and as a matter of personal responsibility decided to sit out this round, and see what the next election brings. If that's true, and I hope it is, we can include Scalia out of the mix. He obviously never sees anything wrong with anything he does, and he is prepared to go on about it, in a wounded tone, for 21 pages. He just doesn't get it: it isn't about his personal integrity. Nino, you are spending the Court's credibility-- coin it doesn't have much of, and that it is not your right to squander.

I make my living working in the courts, and in order to do that I frequently find myself in the position of explaining to clients that the system works, and the system is fair. When judges act in ways that reinforce the perception that it's all a fix, my job becomes impossible. People want to believe that they can get a fair shake if they rely on the law, but they are suspicious, and you really can't get justice if you don't have faith that the system works. Scalia had an opportunity here to buy back some of what the Supreme Court had lost. What a shame he decided that his credibility was more important than that of the institution he serves.