After the revelation that Vice President Cheney and Supreme Court Justice Scalia had been duck hunting together, heretofore called "Duckgate," the propriety of their socializing was questioned, because Scalia will hear Cheney’s case regarding his energy task force’s papers.U.S. Code says that "any justice... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned... where he has a personal bias or prejudice concerning a party... " (28 U.S. Code § 455).
But the judge must recuse himself, and there can be no appeal if a Chief Justice refuses; impeachment is the only remedy. The only consolation then is that, as Chief Justice Rehnquist said, "anyone at all is free to criticize the action of a Justice... after the case has been decided."
Since it is now after the Supreme Court decision in 2000 that awarded the White House to the Republicans, we are "free to criticize" Scalia’s failure to recuse himself. "Anyone at all" may now find fault, and I do, because I do not recall hearing in 2000 that Cheney and Scalia were friends. That information was revealed in Duckgate, when newspaper accounts described the two as "long-term friends" or "old friends."In Duckgate, Scalia also told the L.A. Times that the socializing was ethical because the case involved Cheney in his "official capacity," not a "personal" one. But that merely raises another fetid issue: while Cheney’s "official capacity" may fly for Duckgate, what about when citizen Cheney was awarded the White House in 2000? What was his "official capacity" then?
Scalia echoed two critical but vague terms in the code—"reasonably" and "impartiality"—when he said "no reasonable person could question his impartiality." But I am questioning his impartiality. Does he mean no reasonable Republican could question his impartiality? Maybe he meant only Republicans are reasonable. Reason with me, back to the 2000 election.
In 2000, if Scalia had recused himself, the Supreme Court decision would have been evenly split along political lines. Instead, Scalia’s hand tipped the scales of justice. Assuming all nine justices are reasonable persons, the court’s split can be explained by ideological differences. Even justices are partial to seeing things a certain way.
In recognition of this messy fact, the Supreme Court said in Liljeberg v. Health Services Corp, 1988, "...the goal of section 455(a) is to avoid even the appearance of partiality..." In politics, impartiality is an ideal, not a reality. Thus, as the Supreme Court confirmed, the avowed purpose of the code covering recusal is to maintain the appearance of justice, for the sake of public confidence in the courts.
Think of how it will appear if, in another 5-to-4 split decision, the Supreme Court overturns the rulings of two lower courts, and Scalia again changes both his friend’s fate and that of the nation. Cheney would not have to disclose even who attended meetings on the nation’s energy policy. How would that look?
While we are imagining, let's imagine what would happen if Democrats had done all of this. Would television have been as silent as it has been for this administration?
Reasonably, I doubt Scalia’s impartiality because, in a previous case with the same litigant, he neglected to recuse himself. The fact of his friendship should have been made public. Why should we care now? Because the Cheney energy task force’s policy is our policy. It shapes our future. The limited papers released so far included maps of Iraq’s oil fields, raising questions that must be answered. Yet the same judge who placed Cheney in office can now act to withhold this information from us.
We already know that the legislative and executive branches of government are wracked with virulent partisanship. Bush recently accused Congress of "playing politics," but since politics is, obviously, what Congress does, what Bush meant was that the Democrats were playing politics. It reveals a curious one-sidedness, as if Republican views are not partisan, but instead so central as to be above criticism. But Republicans deserve criticism far afield from Congress: does Attorney General Ashcroft appear evenhanded when Martha Stewart is prosecuted but Kenny Lay is not; or when he belatedly recuses himself from the case of the White House leak of Valerie Plame’s identity, even as the White House wishfully states they doubt the case will be solved?
There are plenty of lesser scandals, unprosecuted or insincerely investigated. But if we allow the judicial branch to even appear beholden to the Republican agenda, we are left with something that looks like vertical integration. Vertical integration is a business concept where, for example, the potpie maker also raises the chickens. Good for business. Bad for politics, where the genius of checks and balances embodied by having branches of government was to prevent such corruption.
The guard dog of the free press appears to be sleeping, and without that reassurance, perceptions of corruption in the government grow, except among those so loyal to their party’s cause as to think it incorruptible. For many of the rest, it appears Republicans are putting party loyalty above the good of the nation, and—if they value nation above party—it is time to correct that appearance.
