Scalia in the Court of Public Opinion
Gandalf Grey
Court Of Public Opinion
Richard Blow is the former executive editor of George Magazine. He is author
of American Son: A Portrait of John F. Kennedy, Jr., and is writing a book
about Harvard University.
Poor Supreme Court Justice Antonin Scalia. It must be agony to have your
integrity questioned just for going hunting with Dick Cheney.
Scalia has refused to recuse himself from the case involving Cheney's secret
energy policy commission, and the memo in which he explains why sounds like
he's auditioning to star in the next Mel Gibson movie. He points out that
everyone does it. Heck, Justice Stone used to throw medicine balls with
"members of the Hoover administration."
He frets that the Supreme Court can not survive "the constant baseless
allegations of impropriety that have become the staple of Washington
reportage." (The court, it is he.) He wrings his hands over the fact that he
has received "embarrassing criticism," even becoming "fodder for late-night
comedians." How damaging for democracy, that anyone might crack a joke about
the Supreme Court.
Scalia huffs-and I do not exaggerate-that the hullabaloo over his hunting
trip is everyone's fault but his. Yet a close reading of his memo suggests
just the opposite. Justice Scalia, never renowned for his humility, simply
can not bring himself to admit that he made a mistake. This memo is not a
ruling so much as a counterattack.
The legal crux of recusal is "whether a judge's impartiality can 'reasonably
be questioned.'" To prove that his cannot be, Scalia recounts the facts of
the trip. He has hunted for several years on the estate of Wallace Carline,
who "runs his own company that provides services and equipment rental to oil
rigs in the Gulf of Mexico." (Scalia bristles at press descriptions of
Carline as "an energy industry executive," though by his own description the
term sounds about right.)
When Scalia learned that Mr. Carline was "an admirer" of Vice President
Cheney, he asks Carline if he'd like Scalia to invite Cheney on the next
hunt. "The answer," Scalia writes with no apparent irony, "was yes." (One
imagines this as something of a Molly Bloom moment.) And so in January 2004,
Scalia, his son and his son-in-law flew with Cheney on a government jet to
Louisiana to shoot some birds.
So far, no impropriety here. An oil industry executive who's fond of Dick
Cheney? Well, aren't they all? An oil industry executive willing to host the
vice president, the arbiter of the nation's energy policy, on a weekend
getaway? Why, it's impossible to imagine any hint of corruption.
Scalia painstakingly rebuts the notion that he received anything of economic
value over the course of the weekend, and thus could not have been bribed.
He points out that because Cheney returned earlier than he did, he and his
relatives bought round-trip tickets-even though they only flew commercial
one way! One might ask what the value of the hunting weekend itself was-it's
the kind of thing that regular Americans who don't get invited on such
outings do wonder about-but Scalia apparently lacked the space to get into
that. Instead, he explains that over the course of the weekend, in which
they hunted twice and fished twice, he was never alone with Cheney and they
never discussed the case at hand.
The details of Scalia's hunting trip with Cheney were as hush-hush as the
vice president's secret energy policy meetings.
But the press, Scalia harrumphs, has these details all wrong, and he cites
various media accounts to prove it. Well, okay. The press did get some facts
wrong. Yet it does seem a little small of Scalia to fault the media for
inaccuracies when those same press accounts are replete with variations on
the line, "Phone calls to Justice Scalia's office were not returned."
It's not easy to find out the details of a hunting weekend involving the
vice president, a Supreme Court justice, and a man who "runs his own company
that provides services and equipment rental to oil rigs in the Gulf of
Mexico." It's kind of like trying to figure out who testified before a
secret energy commission. Hard!
Anyway, Scalia misses the point. Several points, actually. First, corruption
in Washington is rarely a matter of large bribes. It doesn't take a lot to
buy a lot; even small gifts create a sense of obligation that can result in
much larger payoffs. Even so, no one is seriously suggesting that Scalia's
been bought and paid for, or that he and Cheney sat down together and cooked
up a response to this nagging court case thing. The argument is that
spending a weekend together creates a personal bond that can affect a
judge's objectivity, and that judges should therefore avoid such interaction
when about to hear an important and closely watched case that will have a
profound affect on the political future and personal reputation of the
defendant.
For journalists, this is a matter of common sense. For Justice Scalia, this
is an outrage, an absurdity. In perhaps the most inadvertently hilarious
section of his memo, Scalia attacks the notion that he would want to protect
a friend-e.g., Cheney-from the political consequences of a negative Supreme
Court ruling. "Political consequences are not my concern," Scalia writes.
"...To expect judges to take account of political consequences... is to ask
judges to do precisely what they should not do."
The nation can now rest easy. That whole Bush v. Gore ruling? Not political.
The Supreme Court would never consider the political consequences of its
decisions. After 21 pages, Scalia concludes that his honor is intact,
despite the rotten tomatoes hurled at him. "If it is reasonable to think
that a Supreme Court Justice can be bought so cheap, the Nation is in deeper
trouble than I imagined."
I'd amend that somewhat. If this is the best argument a Supreme Court
Justice can muster on behalf of his own integrity, the nation is in deeper
trouble than I imagined.
--
--
FAIR USE NOTICE: This post contains copyrighted material the use of which
has not always been specifically authorized by the copyright owner. I am
making such material available in an effort to advance understanding of
environmental, political, human rights, economic, democracy, scientific, and
social justice issues, etc. I believe this constitutes a 'fair use' of any
such copyrighted material as provided for in section 107 of the US Copyright
Law. In accordance with Title 17 U.S.C. Section 107
"If this were a dictatorship, it'd be a heck of a lot easier, just so
long as I'm the dictator." - GW Bush 12/18/2000.
"To announce that there must be no criticism of the president, or that
we are to stand by the president right or wrong, is not only unpatriotic
and servile, but is morally treasonable to the American public."
---Theodore Roosevelt
"I think all foreigners should stop interfering in the internal affairs of
Iraq."
-- Deputy Defense Secretary Paul Wolfowitz,