Supreme Court Justice Antonin Scalia
Stands Short In His Refusal To Recuse

By William Finucane

Supreme Court Justice Antonin Scalia uses careful phraseology to explain why he can in fact sit on, hear and render judgment on a case where Vice President Dick Cheney is one of the parties, yet simultaneously explain why he can’t adjudicate another suit involving the Pledge of Allegiance, where he has already said things that gave away his thinking.

While Justice Scalia’s reasoning may be passable in the narrow sense, it misses all the major signals regarding what Americans feel is and isn’t acceptable. 

Mr. Scalia and Mr. Cheney went hunting together, after it was known that Vice President Cheney's controversial refusal to provide information relating to his 'energy task force' would be brought before the Supreme Court, but Judge Scalia says he can try the case anyway. The fact he vacations with his old pal will not color his decision making.

Ironically, what’s involved is a suit initiated through the Sierra Club, usually considered an extremely liberal organization, and Judicial Watch, an acknowledged conservative legal organization. The two groups joined together to assert that Mr. Cheney ignored the Federal Advisory Committee Act when he met in closed session with energy executives, industry analysts and various lobbyists.

The case, having moved through the federal District Court, is due to be heard before the Supreme Court this month - April - and among the issues that may be revealed are details of how the administration of George W. Bush, while reviewing energy polices, became enmeshed in the invasion and occupation and/or rebuilding of Iraq. 

It would also be illustrative to learn if in fact decisions were made to stockpile oil reserves during such an upheaval in the Middle-East, with Mr. Cheney and the participants fully realizing that gas prices would likely skyrocket and, ultimately, never return to current levels no matter what took place later. In other words, were they scheming to manipulate the domestic market in order to greatly increase prices on the short-term, and assure a higher price after a leveling off, thereby assuring that billions in additional profits would fall to the oil companies and their stockholders?

The Sierra Club and Judicial Watch, as the plaintiffs, assert that such discussions may well have taken place during the creation of America’s new ‘National Energy Policy.’ 

Just before Christmas last year, the Supreme Court declared it would hear Mr. Cheney’s appeal of a lower court decision demanding that files and records of the energy committee be released for public and Congressional review.

About three weeks after the Supreme Court agree to accept Mr. Cheney’s appeal, Justice Scalia joined Vice President Cheney for a duck-hunting weekend at a private hunting preserve in Louisiana.

Here is the gist of Mr. Scalia’s analysis of why he can still sit in judgment of the appeal by the vice president: Since Vice President Chaney is being sued only as an official, not a person, Judge Scalia can sit on his case because in such an instance, you are not judging the person, just the facts of his case as an officer of the government.

In the rarefied air of the Supreme Court, such reasoning isn’t uncommon, in fact it seems to be going on all the time, in an environment where no one can tell any Justice of the Supreme Court to recuse himself or herself from a case; it’s their own moral choice. 

Because only the given Justice decides whether there may be a potential conflict in his or her action, the Supreme Court members are in this manner a law unto themselves. And there is no appeal from the Supreme Court. What a comfy position.

So Mr. Scalia said to himself that since he is not actually deliberating on a friend, just an officer of the government, there is no conflict or contradiction; Mr. Scalia asserts it’s absolutely clear he could not possibly ever mix up or confuse his acquaintanceship with Mr. Cheney the man with his dealings with Mr. Cheney in his "officer" persona as vice president. Ah, now that assumption was not too hard, was it?

Maybe such an assumption isn’t very difficult for Judge Scalia, but that’s not the case for most people in the world; it’s the common sense opinion of Americans first, and the people of the world second, that is integral to how this situation is ultimately judged. If public opinion becomes jaundiced regarding the Supreme Court, considerable damage will be done to this nations democratic system.

Like it or not, Judge Scalia and the other members of the Supreme Court are vitally important to the Constitutional process. They are, at the moment, the only body on earth capable of checking the immense power being wielded by Republican President George W. Bush and the Republican legislature. If any line is to be drawn in the sand, the Supreme Court is the only one with the power to draw it.

In the eyes of Americans, and others around the world, the Supreme Court holds enormous power. And that is where Judge Scalia’s obfuscation takes on a new light.

Justice Scalia is looking at this whole matter as if it were a purely legal, narrow, domestic affair, something that is not of deep interest to the world, and concomitantly of little interest to Americans. That isn’t the case.

His approach sends signals to Iraq, and all the nations of the Muslim world, as well as to the nations of Europe, that this is how America handles its business; that is, he seems willing to provide an illustration that power and privilege trump democratic openness and processes.

What people everywhere – including al-Queda true believers – will see is that Judge Scalia and VP Cheney are not precluded from taking a duck hunting trip together, even after the Cheney case has already been passed to and accepted by the high court. The implication is that the rules are different for the rich and powerful, even in the world’s greatest democracy. And that is just what the Muslim radicals have been saying for years.

But Judge Scalia remains unmoved. He won’t recuse himself.

The case Mr. Cheney is appealing to the Supreme Court is relatively straightforward. He is being told to deliver up the list of people he met with while setting up the energy task force for the nation, and especially to identify those that participated in creating the policy, and who may also have participated in other key policy issues.

Yet perhaps this is nothing important, really; just the world’s most energy demanding nation setting its national goals based on the findings of a committee organized and led by a man who – prior to becoming vice president – headed the energy giant Halliburton, a company that has its own current problems relating to Iraq.

But no, Mr. Scalia asserts, how could anyone possibly intuit a case of conflict of interest from this situation. He and his friend, Dick Cheney, just happen to pop off every so often to kill a few ducks; to extrapolate from that and conclude that such a social relationship based on shared interests might be indicative of a strong friendship, a bond, of kindred spirits – why that would be idiotic; right?

Wrong.

What else could any reasonable person here in America or in the greater world of observers think?

Two guys get together fairly regularly, sometimes to go duck hunting, and they enjoy each other’s company well enough to break heavy schedules for the chance to get together, but later on one goes to the court of last resort seeking help on an appeal, the very court where the other one is a judge who will help decide the issue. The court of last resort, or course, is the one court where there can be no further appeal; it’s the Supreme Court. Hell, this doesn’t seem too hard to figure out.

It’s not a question of how finely Scalia’s twenty-one page dissertation parses the labyrinthine of past court practices. No, it is a question of whether he sees himself and the United States as having some internal rules that will stop the nation from tripping over its own checks and balances.

The three checks in this system of balances are the governing bodies: executive, legislative and judicial.

Mr. Scalia’s main job is to uphold the integrity of the judicial branch. That, above all, is his duty. He must, therefore, step away from any allegiance to the executive branch.

The problem with being seen as a hunting pal of the vice president is that he cannot seem impartial. He may actually be impartial. But eyes are watching from at home and abroad and obviously few trust his explanation; rather they believe his actions tell the full story. It’s analogous to the old axiom, where the individual is judged by what he or she does, not what he or she says. Judge Scalia cannot seem to see that.

He easily perceives that he made some comments that might prejudice his sitting on the Pledge of Allegiance case and its use of the phrase, "under God." The key issue, of course, is whether that phrase should remain in the pledge, even though it is a relatively new addition; that is, it was thought in the mid-1950s that adding "under God" sounded better and made a point, as opposed to those Communist countries – read Russia, et al – that declared atheistic state policies.

Judge Scalia recused himself from the issue of the pledge verbiage, because it was obvious that he could not handle the case objectively. Pretty much everyone knows the arguments relating to the inclusion of God in the pledge, and given Mr. Scalia’s public remarks supporting the concept of a tribute to the almighty within the patriotic pledge, it was not exactly hard to figure out what his position would have been if he had remained as a voting judge.

Nonetheless it is hundreds of times more subjective for Judge Scalia to sit in judgment of Vice President Cheney’s case, and to rationalize doing so because Mr. Cheney is an officer of the government who led an executive group, as opposed to an individual who is a friend. In short, Mr. Scalia would have everyone believe that he is able to separate Mr. Cheney the vice president from Mr. Cheney his personal friend, creating two entities.

It simply sounds like a cheap trick. And that is probably why a great many Americans, and a large part of the rest of the world simply doesn’t buy it. It's a sorry situation, and seems quite reflective of the cynical policies of the current administration.