Published on Monday, April 26, 2004 by USA Today
Scalia Scoffs at Notion That He's Biased Toward Cheney
by Joan Biskupic
WASHINGTON — When the Supreme Court hears the case involving Vice President Cheney's energy task force Tuesday, the black leather chair two seats to the right of the chief justice will be filled, as usual, by the most confrontational and quotable justice.
Antonin Scalia won't be sitting out the dispute over whether Cheney must disclose internal documents from the task force that helped shape the Bush administration's energy policy.
Scalia recently rejected a request by the Sierra Club, one of the groups suing Cheney, to recuse himself because of a duck-hunting trip he took with Cheney to Louisiana in January — three weeks after the high court agreed to hear the Cheney case.
In a 21-page memo in which he scoffed at the notion that he would not be impartial in deciding the case involving Cheney, a longtime friend, Scalia wrote: "If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined."
Besides shedding light on the often-cozy relationships between those who make decisions in Washington, the memo was part of a series of recent actions that has made the outspoken justice the subject of news headlines and a target for late-night TV comics.
The brash and brainy Scalia, 68, has stirred controversy with his biting words and strong conservatism since he joined the court almost 18 years ago. He stands out among the nine justices for his readiness to say what he thinks, to the point of mocking his colleagues on the court and expressing moral outrage off the bench.
In 1996, the Harvard Law graduate and longtime Washington insider made news with a speech in which he urged Christians to stand up for their traditional beliefs: "We must pray for the courage to endure the scorn of the sophisticated world."
This February, when Scalia disagreed with a court decision that allowed states to provide scholarships for secular study but to exclude theology students, he asked, "What next? Will we deny priests and nuns their prescription-drug benefits on the ground that taxpayers' freedom of conscience forbids medicating the clergy at public expense?"
But sometimes Scalia's words come back to bite him. He sat out a March case over whether the Pledge of Allegiance unconstitutionally endorses religion because of comments he made about the dispute.
A U.S. appeals court had ruled that a public school policy requiring students to recite the Pledge, with the words "one nation under God," violates the First Amendment. In a speech in Fredericksburg, Va., last year, Scalia appeared critical of that ruling. When the atheist father who brought the case asked Scalia to recuse himself, Scalia did.
The justice used that episode to illustrate in the Cheney matter that he will step out of a case when "I have said or done something" that warrants it.
The current controversy began when the Los Angeles Times reported that Cheney and Scalia went duck hunting together in January. Within a few weeks, many of the nation's largest newspapers had called on Scalia to step aside in the Cheney case, and the Sierra Club formally asked him to recuse himself because of the "appearance of impropriety."
In his response, Scalia said he and Cheney have been friends since their days in the Ford administration. "While friendship is a ground for recusal of a justice where the personal fortune or the personal freedom of the friend is at issue, it has traditionally not been a ground for recusal where official action is at issue," Scalia wrote, adding that this is such a situation.
In his classic candidness, Scalia wrote that "many justices have reached this court precisely because they were friends of the incumbent president or other senior officials."
Legal analysts are divided over the persuasiveness of Scalia's stance.
Northwestern University law professor Steven Lubet, who specializes in legal ethics, says the practice of having individual justices — rather than the full court — decide whether a conflict of interest exists does not inspire public confidence.
Says Lubet: "Justice Scalia resolved every disputed issue (regarding his impartiality) in his own favor. It would have been more reassuring if the identical opinion had come from the full court."
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