Scalia's (non)recusal

[Bill Funk]

The statutory standard for recusal -- that a judge's impartiality might 
reasonably be questioned -- does not identify WHO might reasonably 
question the impartiality.  I think there is little question that 
ordinary folk would reasonably question the impartiality of a judge 
going hunting with a party to a lawsuit while the lawsuit is before the 
judge, especially when the hunting is paid for by the party.  But 
lawyers might appreciate the difference between a party in his official 
capacity and a party in his personal capacity, making the sorts of 
distinctions that Marty Lederman suggests.  Or is the WHO even more 
limited?  Should it be only whether any of the parties to the lawsuit 
would reasonably question the impartiality of the judge? 
Each of the possible answers to the WHO question implicates underlying 
theories of the purpose of recusal -- individual justice in the eyes of 
the parties (the due process issue), integrity in the judicial process 
in the eyes of the profession, or integrity of the judicial process to 
the citizenry at large. 
It is entirely plausible that the parties would not reasonably question 
Justice Scalia's impartiality as a result of the trip, while the 
citizenry at large might.  I think Justice Scalia has been focusing on 
the views of the former and not the latter.  Of course, a motion for 
recusal would put the lie to the suggestion that the parties do not 
reasonably question his impartiality. 
Bill Funk
Lewis & Clark Law School