Published on Tuesday, February 17, 2004 by the Los Angeles Times
Old MacDonald Had a Judge ...
Quack, Quack. So Much for the Constitutionally Mandated Separation of Powers
by Robert Scheer
Quack, quack. Say goodbye to judicial integrity. Quack, quack. Forget about holding the nation's vice president accountable for his dealings. Quack, quack. Trash the right of citizens to transparent government. Quack, quack.
Bizarre as it sounds, Supreme Court Justice Antonin Scalia quacked like a duck last week during his defensive denial that a duck-hunting trip with Vice President Dick Cheney was improper. According to Scalia, the visit of the two men to the private game reserve of a top oil executive was merely a pleasant social engagement.
But Scalia's glib response was disingenuous, coming shortly before the Supremes will rule on a White House appeal in a case involving private meetings of Cheney's energy task force. It's outrageous that he does not intend to recuse himself.
"It did not involve a lawsuit against Dick Cheney as a private individual," Scalia said of the appeal while speaking at Amherst College last Tuesday. "This was a government issue. It's acceptable practice to socialize with executive branch officials when there are not personal claims against them. That's all I'm going to say for now. Quack, quack."
The case in question is not a legalistic quibble, and Scalia seems determined to vote in what may be a hotly contested decision with enormous political effect. His Louisiana outing with Cheney came three weeks after the Supreme Court agreed to hear Cheney's appeal of a lower court order that he turn over records of the closed task force meetings he held with executives of the oil, coal, gas and nuclear companies in 2001. Those meetings became the basis for the president's national energy policy, which is chockablock with tax breaks and subsidies for these same industries.
This all has particular resonance for Californians, who, during the manufactured "energy crisis," saw our state and household budgets go up in flames. Many of the same companies represented at Cheney's meetings, such as Kenneth Lay's Enron, had "gamed," or manipulated, electricity prices using federal loopholes created by previous GOP administrations under the broad banner of "deregulation."
Unfortunately for us, the Constitution has a glaring loophole: If a Supreme Court justice doesn't have the moral fiber or humility to do the right thing in a case like this — federal rules instruct a judge to disqualify himself "in any proceeding in which his impartiality might be questioned" — there is no check or balance whereby that decision can be reviewed or rebuked.
According to an Amherst official, Scalia — with his waterfowl impression — may have been trying to preempt protesters he thought were going to perform their own impromptu noises. Nevertheless, by arrogantly trying to make a joke out of his unethical behavior, Scalia has again made a mockery of the enormous responsibility the Constitution places on our highest court.
After all, it was Scalia who led the Supreme Court with flimsy legal logic to validate the dubious 2000 Florida election results that were the difference in placing the current president in power. This time he may have gone too far in shredding the Supreme Court's vaunted reputation of impartiality.
"I'm surprised he's sticking by his guns. I would hope he does see the light," Georgetown University law professor Paul Rothstein said of Scalia's stubbornness to acknowledge what is simple common sense: If you are a longtime friend of the vice president and are accepting free junket flights from him, you best remove yourself from the fray when it comes time to rule on a decision that may damage his career.
Finally, we should remember what the legal case in question is about: transparency in government, which is one of the taproots of democracy. While Scalia twists and turns to avoid the obvious appearance of a conflict of interest, the case's co-plaintiffs — the liberal Sierra Club and the conservative Judicial Watch — have joined forces to demand accountability in government, so that we might see how corporate interests wield disproportionate power in the halls of government.
The Scalia-Cheney hunting tryst shows that the old-boy network is still scamming the public.
Copyright 2004 Los Angeles Times