Juan Non-Volokh notes a silly NYT article on the Scalia recusal mess. The new 'wrinkle' is that the authors allege that Scalia's purchase of a round trip ticket of which he only ended up using the return leg of the ticket was ethically wrong.
There is a twofold bait and switch going on here. The first is in the article itself when they compare the cheapest round-trip fares (which are always restricted) with the cheapest unrestricted one-way fare which is not usually the cheapest one-way fare. The second bait and switch is on the subject of ethics. Frankly, I don't care if Scalia takes a few extra napkins at McDonalds for his glove compartment. Strictly speaking though, this is an ethical lapse. The relevant standard (and where this discussion started off at) was an ethical lapse that was worthy of recusal, ie getting paid for not doing your job because of a conflict of interest.
There's no recusal worthy ethical lapse here, not even close. Did the airline specifically omit to enforce the ticket contract provision and charge Scalia the difference between the round-trip ticket and the one-way ticket in order to influence the justice on a court case in which they are not a party to? It's ludicrous to think so.
But we're in the land of extra ketchup packets from McDonalds here. It might or might not be a perfect ethical move but since when is perfect ethics at this level something we ask of our public servants? Now if the airline does not invoke its rights to raise fares under its contract, waiving that term, does that make Scalia's move ethical? How about if the airline invoked it and Scalia paid extra but didn't put that fact in his memo? What if the lowest comparable one-way ticket was less expensive than the round-trip ticket (sometimes they are) and the airline didn't nullify Scalia's round-trip ticket because then they would owe him money? In a purely speculative article with little to no actual reporting done, we're not even sure whether even the faintest wiff of an irrelevant ethical lapse was committed.
In short, it's just a hit piece. Move along, there's nothing to see here but the paper of record pimping its reputation out to partisan hacks.
Posted by TMLutas at March 24, 2004 07:41 PM