It would be both easy, and simultaneously anything but easy, to write directly about yet more ethics issues surrounding Justice Alito and whether he has any business hearing certain cases and the continuing dilemma of having there be no mechanism for enforcing any judicial ethics rules as against the United States Supreme Court.
Easy because the apparent arrogant way in which he thumbs his nose so publicly regarding the concept of the appearance of impropriety is a rich vein made richer within the last few weeks. Anything but easy because, as a lawyer, the ethics rules in Tennessee actually prohibit a lawyer from “mak[ing] a statement … that is made with reckless disregard as to truth or falsity concerning the qualifications or integrity of … a judge.”
Now, of course, I don’t think that anything I would actually write about the latest examples of why Justice Alito likely has no business whatsoever hearing a number of cases that have been, or currently are, in front of the Court relating to a current Presidential candidate who desires to be a dictator would be made with reckless disregard as to truth or falsity. I think all of it could be written quite truthfully or at least involving the expression of opinion on a reasonable basis, but why even run the risk since someone of my stature can’t actually make anything be different.
Instead, I’ll write about the difficulties surrounding efforts to enforce the appearance of impartiality standard for seeking to disqualify judges even when there does exist a viable mechanism for attempting to do so. An easy jumping off point for doing so is a recent appellate decision from Michigan, Michigan v. Martin, affirming a decision by a trial judge not to recuse in a murder case where she had previously publicly endorsed the prosecutor in the prosecutor’s effort to become elected to a judicial position.
At some level, a writer could give short shrift to the merits of the argument for disqualification, much in the same way that the Court of Appeals seems to have done, as it dedicated barely two full paragraphs of its opinion to the argument that the trial judge’s endorsement of the assistant prosecutor for a judicial position created an unacceptable appearance of impropriety. The core of the argument against recusal in that short section was:
To preserve the integrity of the proceedings, the judge informed defense counsel that she had endorsed the prosecutor assigned to his case. The judge also assured the attorneys that she believed that the endorsement would not affect her rulings. There is no reason that an endorsement such as this alone would impair the judge’s ability to carry out her judicial responsibilities with impartiality. This is simply not the type of extreme case in which the probability of actual bias is too high to be constitutionally tolerable.
And yet, what the Court of Appeals did not do in any true fashion was to also evaluate that issue along with the contentions of judicial misconduct during the trial made by the defense. The defense also argued on appeal that “the trial court’s sua sponte interventions in defense counsel’s cross-examinations improperly influenced the jury by creating the appearance of bias against defendant.” After noting that the issue came to the court “unpreserved,” meaning that the defendant did not object during the trial, the court offered a surface level evaluation of the way that the court behaved during cross-examination by the defense without any real acknowledgment of the combined specter of such activity alongside the endorsement issue.
Neither the record as a whole nor the isolated examples that defendant provides supports the conclusion that the trial court’s conduct improperly influenced the jury. The record shows that several of the trial court’s comments responded to defense counsel’s statements that were deemed argumentative. Other examples were statements that the trial court directed toward witnesses. Several statements were requests to defense counsel to rephrase questions for clarity. Although the trial court intervened during defense counsel’s cross-examinations more than it did during the prosecution’s cross-examinations, defense counsel’s cross-examinations were longer. To the extent that the trial judge’s tone and demeanor can be discerned from the record, nothing about the language that she used suggests that she was argumentative, disrespectful, or adopted a controversial tone.
Even the sideswipe reference to the lack of objections at trial by the defendant could have been explored in a different fashion had the court wondered aloud at all if the overall concerns about favoritism for the prosecutor impacted decision-making about whether to object to such things.
But at least the defense got to make the arguments to an appellate court and potentially can go one more round and try to see if the Michigan Supreme Court might reach a different result. Litigants before the United States Supreme Court might as well just appeal to heaven at this point.