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Good for the Gander, Good for the Goose


Here’s a shocker: On the merits, Supreme Court Justice Antonin Scalia is right about his not needing to recuse himself in the case now known as Cheney v. U.S. District Court.
That’s because the case isn’t really about Cheney. It’s about Cheney’s office — the vice presidency — and whether or not that office has the right to keep details of meetings secret from the public. And while that difference – between the office and the man – may look small, it is actually quite large.

Now, Scalia has no business palling around with members of the executive branch at cozy high-priced hunting retreats where the booze flows freely and the sexist jokes are thicker than flies in summer. He shouldn’t be getting free rides on Air Force II and he certainly shouldn’t – as he spells out for the first time in his long, 21-page denunciation of the criticism against him — be brokering friendships between the Vice President and various corporate big wigs. This behavior shows an appalling lack of judgment, the sort of patently stupid “how dare you” defensiveness that’s characteristic of the Bush Administration’s approach to public scrutiny and criticism. After years in the minority, the nation’s conservatives are acting like a bunch of spoiled children in a candy store, lording their power over any and everyone whom they suspect – even just a whisper – of disagreeing with them.
But that’s not what’s being argued here. That’s not what this pending case is about. The argument made by the Sierra Club is that Scalia is biased and cannot be expected to judge Cheney v. U.S. District Court on its merits. Scalia’s judgment is compromised because of his friendship with Cheney, a friendship Scalia flaunted by going on an all-boys duck hunting expedition to deepest darkest Louisiana, according to the Sierra Club.
Well, Scalia’s judgment is compromised. But we didn’t need a duck trip to tell us that. He has no intention of voting to make the Vice President reveal notes of his meetings with oil and gas industry executives. We know that. We also know that if this were a question concerning Vice President Joe Lieberman, Scalia would vote to open those meetings. We know this because Scalia is the worst kind of Supreme Court Judge: He’s a political hack. Scalia’s a smart political hack, even brilliant — read his memo — but he’s a loyal party apparatchik nonetheless. You can hear it in the opening paragraphs of his memo where he explains – in a vain attempt to excuse his poor judgment – how arrangements for the trip were made. It’s touching really, this important man sharing with us – the common folk and those who run newspaper editorial boards – the details of his high-faluting social life.
But none of that matters. That’s not what this case is about. Which is why very little – except bad precedent – would have come out of his decision to grant the Sierra Club’s motion or, more broadly, by the court’s decision to establish recusal standards. No one gets to the Supreme Court by ignoring politics; something Scalia acknowledges in passing by claiming just the opposite.
“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. It seems to me quite wrong (and quite impossible) to make recusal depend upon what degree of political damage a particular case can be expected to inflict.”
“In sum, I see nothing about this case which takes it out of the category of normal official-action litigation, where my friendship, or the appearance of my friendship, with one of the named officers does not require recusal.”

That’s an important point because when the shoe’s on the other foot – as it is with Justice Ruth Bader Ginsberg’s relationship with the National Organization for Women – her political opponents will have reason to recuse her from oh, cases having to do with pay equity, discrimination and right to birth control and abortion – anything where NOW is a litigant. And, oh, yeah, NOW is often a litigant and, in this case, it’s the organization, not an individual.
Of course, Bader Ginsberg has shown none of Scalia’s flouting of the basic proprieties. Scalia clearly doesn’t see it but there is a difference between Bader Ginsberg’s lending her name and support to series of speeches publicly advertised and open to pretty much everyone, and indulging with your political cronies in a exclusive and time-honored male bonding ritual. But that’s beside the point. What I really don’t like the idea of Anton Scalia deciding those so-called “feminist” issues – again, because I know how he’ll vote – without Bader Ginsberg being in on the argument. That prospect is a whole lot more chilling than the idea that Scalia’s going to vote – as we expect him to – in the administration’s favor.
Liberals have no one to blame but themselves for this sad state of affairs. When Judge Robert Bork was nominated, an all out effort to deny his nomination was launched by a host of Left-leaning organizations. I don’t agree with Bork’s politics; his legal “fundamentalist” interpretation of the U.S. Constitution is out-of-date and harmful to the current state of civic and civil society. But just as harmful is the belief – introduced and incorporated into the selection process for all federal court judges – that political belief determines fitness to serve. Carrying that state of affairs one step further – to determining the fitness of justices to hear individual cases based on their affiliations and other associations while they’re on the court – will politicize the court even more. And politics in legal arguments is something we need less, not more, of these days.

Share  Posted by Chris Nolan at 11:43 AM | Permalink

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