The LA Times today runs a front page story about the Cheney-Scalia duck-hunting trip, alleging some deeper unethical behavior by Scalia in being Cheney's guest on Air Force Two. Lots of quotes from the usual suspects (Sierra Club, etc) who want Scalia to recuse himself from the Executive Privilege appeal by Cheney of a lower court order ordering him to turn over private notes of White House meetings on energy policy.
What is entirely missing from the story is the Supreme Court gaming that is going on here, which the reporters are not only aware of, but are willing partners in. This isn't about "ethics" -- if this was Souter or Breyer involved not a word would be said -- it's about preventing Scalia's vote (a sure vote for executive privilege in any administration) from counting. If sucessful, we can expect much more of this crap in the future. With a Supreme Court often divided 5-4, recusal of one of the "conservative" majority could well result in a 4-4 no decision. This would cause the lower court decision to stand, which is what the gamers want in this case.
Now, this could be played both ways, with some of the more active liberal justices (e.g. Ginsburg) being flayed in similar manner for speaking out on issues like the Patriot Act, or for socializing with people or groups that have briefs before the Court. But bashing justices with silly trumped up charges to gain recusals in order to shape a rump majority -- or to prevent the court from reaching a majority -- is not only unethical in any sense of the word, but harmful to the institution.
But maybe that's the whole point: The next logical escalation of the politics of personal destruction and politicization of everything.
I think part of the game, too, is that an admission by Scalia that he couldn't be impartial in a case involving Cheney spills over to the Bush v. Gore case and thus (in the eyes of lefties) to the very legitimacy of Bush's presidency.
I also think that Scalia's insistence on not recusing indicates his belief that it will be a 5-4 divided vote.
Viewed in the abstract, however, don't you think there is a case for recusal? If you take politics out of it, isn't this hard to defend, given the case law out there?
Posted by: Patterico at February 5, 2004 11:24 AMSure there is a case for recusal -- Scalia was unwise to go on the trip. Any politician would know better. Cheney in particular should have known better. But Scalia is not a politician -- he is a bull in a china shop, politically. Besides, no one can argue that his vote was even marginally influenced by the trip.
Counter question: Would one argue that Ginsberg should recuse herself if she had a lunch with the head of NOW while a women's rights or abortion case was pending?
Posted by: Kevin Murphy at February 5, 2004 11:38 AMOff the cuff:
If NOW were a litigant, I would see a potential problem. If Ireland herself were a litigant, I would see a bigger problem. If it were a vacation rather than a lunch, I would see a bigger problem still.
I still respect Scalia more than I do Ginsburg (though they are great friends). But I tend to think he's making the wrong call on this one.
Posted by: Patterico at February 5, 2004 11:15 PMFrom a legal perspective, I'm sure that's fully correct. But this is not entirely legal, it's quite political, and that's where I'm coming from.
To illustrate: If you swapped the situations (Ginsburg duck-hunting with Cheney, Scalia vacationing with Ireland), from a LEGAL perspective there is utterly no difference in the analysis.
But from a political perspective, there are fundamental differences. Mainly that one *could* claim, in the swapped situations, that the natural inclination of the justice might be overcome, where in the original situations it would be preaching to the choir. AND, politically, in the original situation -- the one with no concievable effect -- those opposed to the justice's natual inclinations would cry for recusal, where in the swapped situations, they wouldn't, as there is nothing to gain.
Posted by: Kevin Murphy at February 6, 2004 09:21 AM