If It Quacks Like a Duck

Published January 30, 2004, issue of January 30, 2004.
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Antonin Scalia, the cerebral associate justice of the United States Supreme Court — and President Bush’s reputed favorite for chief justice — is a man who knows something about ducks. He hunts them with passion and skill, by his own account, and eats them with gusto. Just this month he managed to bag a few during a duck-hunting vacation at a southern Louisiana retreat, even though the local ducks were, as his host reportedly assured him, scarcer than they had been in 35 years. By the way, Scalia later told the Los Angeles Times, they “tasted swell.”

Given his expertise, Scalia has shown surprising obtuseness in the face of some awkward judicial questions raised by his jaunt in the woods. The justice’s hunting companion, Vice President Dick Cheney, an old friend of his, happens to be the defendant in a lawsuit that the Supreme Court agreed to take on just three weeks earlier. The timing and Scalia’s poor choice of company have led to calls in Congress and the press for him to recuse himself from the case. But he doesn’t see why. “I do not think my impartiality could reasonably be questioned,” he said in a letter to the L.A. Times.

Scalia’s demurral is remarkable in its lack of introspection. Coming as it does from a justice who has raised the public questioning of other justices’ objectivity to a high art — his dissent in the Texas sodomy case last June accused his colleagues of having “taken sides in the culture war” — it is almost comical.

The irony doesn’t end there. The case in question involves long-running lawsuits, by two public interest groups and the government’s own General Accounting Office, trying to force Cheney to disclose whom he met with during his preparation of the administration’s energy policy. Critics have charged that those in the room included energy industry lobbyists and executives who stood to benefit from the outcome, possibly even Enron chief Kenneth Lay. Cheney doesn’t think it’s anybody’s business who was there.

Now Scalia is insisting it’s nobody’s business whom he visits while preparing to decide Cheney’s appeal.

To top it all off, their host for the duck shoot was a Louisiana energy executive, Wallace Carline, owner of the oil service firm Diamond Services Corp.

As the debate over the duck hunt started to unfold last week, two senators, Joe Lieberman of Connecticut and Patrick Leahy of Vermont, were moved to write to Chief Justice Rehnquist and ask what the rules were for recusal. Rehnquist was even more dismissive than Scalia. The very question, he replied, was “ill considered.” Only justices can decide their own objectivity. Citizens who don’t like their actions “are free to criticize” after the case is decided.

It’s not clear what the chief justice had in mind for citizens to do after cases are decided. Supreme Court rulings are final. They cannot be appealed. Perhaps he thinks Americans should be allowed one further appeal — say, to the World Court in the Hague. But that seems unlikely. Perhaps Rehnquist thinks Americans should leave him and his fellow justices, life appointees all, to run the country the way they see fit: We decide. You get used to it.

To be fair, that’s surely not the way Rehnquist or his fellow justices view their role. But it is the way a growing number of Americans have come to see the high court and the administration with which it is so closely identified. The current conservative ascendancy is marked, at least in the eyes of its critics, not just by the passion of its convictions but by its disregard for the views of its opponents.

The executive and legislative branches can be held accountable for this high-handedness at the ballot box next November, if the citizenry so chooses. But the judicial branch cannot. It is answerable to no one but itself.

As weighty as the issues may be in the upcoming Cheney case, they are not the only thing at stake in this dispute. Nor is it merely a question of whom Cheney met with while he chaired the energy task force and who stands to benefit from the administration’s energy policy. No, the larger question is whether the American public can have faith in the fundamental fairness and integrity of our governing system. For that faith to be restored, the court must not only be objective; it must be seen to be objective.

The case of In Re Richard B. Cheney is one that, as the saying goes, looks, walks and quacks like a duck. The interests of blind justice demand that Justice Scalia find an honorable exit. He should recuse himself.






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