Topic: Professions & Institutions

Good Judge Hunting: Antonin Scalia and the Cheney Case
(2/11/2004)

Supreme Court Justice Antonin Scalia recently went hunting with Vice President Cheney, even as the Supreme Court prepares to rule on whether the documents pertaining to Cheney's meetings with energy company officials regarding future US energy policies must be made public. This has led to critics calling for Scalia's recusal from the case, on the grounds that the social contact renders his objectivity in the matter suspect. Scalia, feisty as always, denies this, and maintains that he is fully capable of ruling objectively.

And I'm sure he is, but that's beside the point. In the case of judicial independence, it is often appearances that count, and because this is an issue particularly charged with partisan passions, the Supreme Court must avoid any hint that cronyism or personal loyalties are playing a part in the outcome of the legal showdown. Scalia should remove himself from the case.

Justice Scalia has pointed out that personal friendships between the justices and Washington leaders are commonplace, and that mere friendships among professionals should not raise the specter of favoritism or bias. Indeed, had Scalia maintained exactly the same collegial relationship with Cheney, but avoided the hunting trip, there would be no issue. But the outing conjures images of male bonding and frank talk by the campfire (lobbying, perhaps?), and if Justice Scalia were to rule Cheney's way (and Scalia's past opinions would suggest that this is likely), the legitimacy of the ruling would be, in the eyes of many, tainted. But there is more.

According to the L.A. Times, Scalia was flown to the hunting reserve on the small jet that serves as Air Force Two. That could be interpreted as a gift to a judge from a pending litigant. The trip has value, and judges are not supposed to accept things of value under circumstances where it calls their objectivity into question. This alone would justify a recusal. And there's a "strike three."

The Times reports that the reserve where the duck hunting took place is owned by Wallace Carline, the head of Diamond Services Corp., an oil services firm that is on 41 acres of waterfront property in Amelia, La. The company provides oil dredging, pile driving, salvage work, fabrication, pipe-rolling capability and general oilfield construction. There is no indication that he has a direct stake in the case, but he is an energy executive. So we have a Supreme Court Justice ruling on whether materials should be released regarding the input of the energy industry into national energy policy in meetings held by the Vice-President, after he spends a hunting trip with the Vice-President, who has also provided charter jet transportation, at a hunting reserve where he is the guest of an energy executive.

Come on, Justice Scalia.

Ethics Scoreboard acknowledges that Scalia has reason to dig his feet in on this issue: he has been accused of conflicts before, on flimsy grounds: it was insulting and absurd to suggest that his appointment to the Court by the first President Bush influenced his opinion in Bush v. Gore, for example. Supreme Court Justices serve for life, and represent the most distinguished careers in the legal profession; they have earned reputations for integrity. It would be a breach of judicial ethics for Scalia to permit Cheney to have a private audience on the merits of his case; we have to assume that the trip included a "no discussion of the case" rule. But there is no avoiding reality. The hunting trip, fairly or unfairly, has called Scalia's impartiality into question. An astute man, he should have anticipated this problem, and kept his friendship with the Vice-President at a distance until the case had been decided. Now, it is not even a close call. The only proper course is to stay out of the case.

There is a danger here, of course. Warm personal relationships between public servants with opposing political views are a tradition in Washington, D. C. and most communities. Increasingly, such relationships are being viewed with skepticism, as if only strangers are capable of fairness, common sense, and publicmindedness. But if all social interaction is removed from public service, the jobs will become unbearable. We ought to strive for an environment in which we regard professionals as unbiased and ethical until and unless they prove otherwise. This is trust. The current environment, in which opponents, the media, and the public begins with the assumption that public servants are not worthy of trust, is unfair to them, and to us.

But trust can also be stretched too far, and the conditions of Scalia's duck hunt cross any reasonable line.

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