What office is Scalia running for?

Adam Cohen has a long rant against Scalia behind the subscription wall at today's NY Times. Here's a bit of it.

Jutice Antonin Scalia has gone too far — and he keeps on doing it.

He made national headlines recently for making a gesture that may or may not be obscene. If it wasn't obscene, it was certainly coarse and undignified.

He recently called those who disagree with his unconventional views of the Constitution "idiots."

His public statements often make him sound more like a political partisan than a judge. He is particularly bad on the subject of Bush v. Gore, the decision that put President Bush in the White House, a low point in the Supreme Court's history that Justice Scalia should not be pulling down any lower.

Worst of all, Justice Scalia refuses to abide by the basic principles of recusal, the law that forbids judges from hearing cases in which they are not impartial, or will not be viewed as impartial. A few weeks ago, he took part in a case involving the rights of detainees after making inflammatory statements that seriously called his fairness into question.

Justice Scalia is certainly hurting his own reputation. After one of his ethical lapses involving Vice President Dick Cheney, Jay Leno joked on "The Tonight Show" about an "embarrassing moment" when Mr. Cheney visited the White House — "Security made him empty his pockets and out fell Justice Antonin Scalia!"

More important, Justice Scalia's actions are damaging the reputation and moral authority of the Supreme Court. Not since Abe Fortas and William O. Douglas stirred up controversy in the 1960's and 70's has there been a justice whose personal conduct has done as much to diminish the court's reputation.

…If Justice Scalia keeps flouting basic recusal principles, the court should consider changing its rules. Currently, justices are the only federal judges who are allowed to decide on their own whether to recuse themselves. There is an inherent illogic in allowing a judge to be the final word on his own impartiality — if they are so biased that they cannot hear a case, they may well be too biased to decide if they are too biased. But it is a system that works only if justices do their utmost to be fair to the arguments for recusal.

The court could decide to allow the justices as a whole, or an alternating panel of three justices, to rule on recusal motions aimed at their colleagues. Such an approach would have its own problems — conceivably, justices in one ideological camp could vote to recuse their ideological opposites to affect the outcome of a case. But if individual justices abuse their right to decide their own motions, such a change would be an improvement.

Finally, Congress should be doing more. Respected members from both parties should speak out when Justice Scalia makes outrageous comments, and make it clear that better is expected of him.

They should also reconsider the rules of recusal. Congress could amend the federal recusal statute to require that the whole Supreme Court, or a panel of justices, rule on recusal motions. Short of amending the law, some pointed criticism from members of Congress, particularly on the Republican side of the aisle, could encourage Justice Scalia to do better in ruling on his own recusal motions.

More than any modern justice, Justice Scalia seems intent on presenting himself to the world as an outspoken champion of conservative values. But conservatives are people who believe in respecting and preserving existing institutions. There is nothing conservative about diminishing a great institution like the Supreme Court by making inflammatory and partisan off-the-bench statements and ignoring the rules of ethical judging.