Ethics

    In reading Joan Biskupic?s interesting biography of Antonin Scalia (?American Original?), I was surprised to find myself quoted for an opinion that I didn?t remember and that I think is clearly wrong.  When I checked the source, however, I was embarrassed to find that Biskupic was correct in the attribution.

    In 1986, when Scalia was in the D.C. Circuit, he sat on a case involving AT&T.  Three years earlier, before having joined the court, Scalia had been a litigation consultant for AT&T for a fee of $25,800.  In an article in the Washington Post, I was quoted as saying that Scalia?s failure to recuse himself from the AT&T case was an ?act of serious misjudgment.?  By contrast, John P. Frank said that there was ?absolutely no impropriety? in Scalia?s having sat on the case, and Geoff Hazard said that there was no ?per se disqualification? after three years.

    Biskupic also devotes an entire chapter of her book to the duck-hunting matter in the Sierra Club case and another to Bush v. Gore.  Oddly, having found my AT&T quotation from almost a quarter of a century ago, Biskupic missed more recent things that I have written about Scalia?s role in those more important cases.

    In an article in the GJLE in 2004, I criticized Scalia for sitting in the Sierra case, pointing out that the trip implicated three separate ethical concerns ? a particularly close personal friendship between a judge and a litigant, receipt by a judge of something of value from a party in a pending or impending case, and ample opportunity for private, ex parte discussions of the case.  In the same year, I pointed out in an op-ed article in Newsday that, under Scalia?s own analysis in his Memorandum in Sierra Club, he was required to recuse himself in Bush v. Gore.  I?m a bit surprised that Biskupic found interest in the AT&T quotation but not in the more recent and substantial analyses.  I?m no less embarrassed, however, by my earlier opinion.