ORLEANS, Louisiana, 21 March 2004 — In chaos theory, an Amazonian butterfly flapping its wings causes cataclysms across the world. So what US Supreme Court Justice Antonin Scalia did last month, accepting an all-expenses-paid duck-hunting trip to Louisiana with Vice President Richard Cheney, may have effects in Iraq.
Why? Because Iraqi judges know something Scalia may not — a Hadith of unimpeachable authenticity teaches that two out of every three judges are going to hell.
So imagine Iraqi judges’ perplexity when Scalia not only refuses to recuse himself from a case in which his impartiality is now reasonably in doubt, but then publicly mocks those who dare suggest he should.
Just weeks before Scalia was scheduled to rule on Cheney’s actions as head of President Bush’s National Energy Policy Development Group, Scalia haughtily confirmed he’d “socialized” with Cheney “as a private individual” rather than as a government official, as was “acceptable practice” for Supreme Court justices.
And then, he quacked. Just like a duck.
“Quack! Quack!” said the most outspoken justice of the highest court of the most powerful state on earth, defeator of the dreaded Saddam, basher of the bilious Bin Laden, and now tutor to the emerging Iraqi nation in the art of democratic governance.
Democratic governance requires a constitutional separation of powers. But Iraqis should look carefully at what the Founding Fathers and Constitutional Framers did, or failed to do, regarding the judicial branch. For it has a flaw that Scalia’s childish conduct shows off to perfection.
The US Supreme Court has no “check.”
Federal court rules instruct a judge to disqualify himself “in any proceeding in which his partiality might be questioned.” All states have similar rules, and commissions evaluating judicial conduct and performance can sanction or remove a noncomplying judge. But the Fathers and Framers intended that America’s highest court be truly “supreme.”
And so they did a very Muslim thing. They established “checks and balances” of each justice’s personal moral fiber and personal humility. They believed justices would be different from legislators, executives, and even ordinary judges — not squabbling politicians, but contemplative jurists. The Shariah, which remains in Iraq “a source” of law with which no man-created law can contradict or conflict, similarly requires judges to be deeply insightful, profoundly knowledgeable, honest, forthright people with integrity.
But the most important Muslim quality is that a judge possesses, well, judgment, in excess of that usually seen in the ordinary person.
Iraqi judges should therefore avoid imitating Scalia’s increasingly odd and combative public personae, in which remarks and animal noises he utters outside the courtroom are becoming more important than what he says and does within.
Scalia recently withdrew from a pending case concerning whether the phrase “under God” should be kept in the US Constitution. He had already publicly supported the Constitution’s mentioning God. But by indulging his ever-growing ego in public speaking, Scalia deprived the litigants of his presence to decide the very matter he claims to be so eager to protect.
And is public speaking Scalia’s job? No.
Scalia returned to Louisiana last week, publicly criticizing “activist” judges on the Sixth Amendment, which gives all defendants, including the poor, the right to a lawyer. He contended that the Constitution’s Framers never intended the government to pay for the poor’s defense, even though this is the only way this constitutional right can be effectively exercised.
But that same day, Scalia eluded his judicial responsibilities by failing to participate in the Supreme Court’s review of the final, death-row appeal of an indigent whose lawyer was paid with public monies. Usually, prisoners facing the ultimate sanction of death receive the high court’s fullest attention, and all justices are expected to consider this grave verdict. Modern communications greatly facilitate justices’ abilities to travel and still do this. But Scalia, who dined lavishly while decrying lawyers’ fees paid for the poor, ignored this case. Did Scalia effectively withdraw because of his strong, personal views that the poor are unentitled to financial help to receive equal justice?
If so, one wonders why Scalia has not recused himself in Cheney’s case. Washington State’s Congressman Jim McDermott remarked that Cheney’s case created “a public energy policy which has led to two invasions, two occupations” — a direct reference to US Middle East policy.
The stakes could not be higher.
Scalia should ponder Caliph Umar: “Consider all equal before you in the court and ...in giving your attention to them so that the highly placed people may not expect you to be partial and the humble may not despair of justice from you.”
That means no costly hunting trips with friends who are litigants.
Scalia looks to an increasingly bemused public to approve his feelings and beliefs. But for Umar, Scalia looks in the wrong place. Rather, Scalia’s place is in the court, not the bully pulpit. And, for his work done diligently and honestly there, “God will grant you a great reward and give good reputation for establishing justice in the courts of justice.”
So no quacking, please. Iraq is listening.
— Sarah Whalen is an expert in Islamic law and taught law at Loyola University School of Law in New Orleans, Louisiana.
