Scalia on the “Appearance of Impropriety” Ethical Standard- “If there’s anything vaguer than that I can’t imagine what it might be.”

April 27th, 2011

Legal ethics, a topic of great interest today, made an appearance today during oral arguments in Nevada Comm’n on Ethics v. Carrigan.

JUSTICE SCALIA: Mr. Rosenkranz, is — is the vote of a judge in a case like the vote of a legislator? Is — is that speech? Because judges are subject to ethical rules which — which prohibit their participating if there would be, quote, “an appearance of impropriety.” If there’s anything vaguer than that I can’t imagine what it might be. Can I get out of allthat stuff?


Glad we got that cleared up.

Update: Later in the transcript, Justice Breyer elaborates, and asks why Judges can be held to a vague, common law style of ethics, but executive and legislative branch employees cannot:

JUSTICEBREYER: That’s part of it. But my — my basic question is, as you know, with judges, and I guess you have a very vague statute which was quoted to you, and what we have are subsidiary rules with ethics commissioners. I have in my office -they’re not commissioners; they’re committees of judges.And I have in my office seven volumes which I look at when there’s a question, as others do, and those seven volumes contain dozens of opinions of a committee trying to apply vague statutes and vague rules — not constitutionally vague, but generally.So what’s wrong with Nevada doing exactly the same thing here?
MR. ROSENKRANZ: Because the difference, Your Honor, is judges are a –
JUSTICE BREYER: Oh, so you’re saying that the difference is that we’re judges?

JUSTICE BREYER: You didn’t answer my question, which is since the Judiciary uses what’s called the common law method, why is it impermissible for the Executive Branch or the Legislative Branch also to use a common law, case-by-case method of elucidating through example what a general — what a general provision means?

MR. ROSENKRANZ: The answer, Your Honor, is the Judiciary does not engage in political activity outside -JUSTICEBREYER: Well, I — so you’re saying that one who engages has to use a — a definitive rule-based method rather than a common law method? So my question there would be, assuming your difference between the branches is right, still why?