Missed Demeanor
Steve Cobble is a senior fellow at the Center for International Policy.
When it comes to conflicts of interest and ethics, the merely mortal cannot stand next to Supreme Court Justice Antonin Scalia.
As the infallible justice deigns to inform us on page 18 of a recent 21-page essay about his duck-hunting trip with longtime pal Dick Cheney, who is being sued in Scalia's court: "Since I do not believe my impartiality can reasonably be questioned, I do not think it would be proper for me to recuse."
Try as you might, you can't argue with the old "ethically blind in the duck blind" argument.
Recall that for Scalia, there was no recusal from Bush v. Gore just because the father of the petitioner was vice president of the regime that appointed him. Nor was there a recusal from Bush v. Gore just because Scalia's son worked for one of the law firms on the Bush team. Nor would Scalia give up a critical duck-hunting trip with Vice President Cheney just because the vice president is the main target of case pending before the court, Cheney v. U.S. District Court.
To recuse verges on pleading guilty, and that would imply that Justice Scalia could be corrupted. Or even that someone out there, in the public, could "perceive" that he could possibly be corrupted. As Scalia says on page four of "recusal refusal" to the Sierra Club's demand that he step away from that case, 'My recusal is required if, by reasons of the actions described above [going on a duck-hunting trip with the vice president and others], my 'impartiality might reasonably be questioned.'"
Thus, to question his impartiality is to be unreasonable"and everybody knows that reason is one of the cornerstones of the legal system.
Indeed, life is different at the top. And this predicament is not new. Scalia is using the same line of reasoning applied by Cheney back in the summer of 2000, when, despite searching high and low from one Bush to the next Bush, Cheney could find no one in America more qualified to be vice president than himself.
Sometimes, though, even geniuses like Scalia get so caught up in their partisanship that they contradict themselves. Consider Scalia's written comments, in turning down the Sierra Club's recusal demand (page nine, italics added):
"To be sure, there could be political consequences from disclosure of the fact (if it be so) that the Vice President favored business interests, and especially a sector of business with which he was formerly connected. But political consequences are not my concern...To expect judges to take account of political consequences"and to assess the high or low degree of them"is to ask judges to do precisely what they should not do."
Now compare those remarks to what he wrote on Dec. 9, 2000, when Scalia explained why the Supreme Court of the United States had been "forced" to intervene, against all precedent and previous right-wing ideology, to overrule a state court and stop the counting of the votes in Florida: "The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election."
Gee, Antonin, I know I'm not as smart as you are, but isn't that whole "casting a cloud upon what he claims to be the legitimacy of his election" logic in direct and total contradiction to your recent "political consequences are not my concern" argument?
There are words for such a contradiction: partisanship, hypocrisy or, perhaps, hypocrisy in the service of partisanship.
The Supreme Court's intervention in the 2000 election remains a shameful stain on five justices' robes. And with the Cheney case now before the court, history seems to be repeating itself.
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Published: Apr 30 2004
