A partyist, ignorant hack named Andrea Paysinger, who is banned from further commentary by the Ethics Alarms “too dumb and biased to contribute” rule, just wrote a comment to the Clinton-Lynch post making the typical ratioanalization-rotted argument that “all the brouhaha over this is ridiculous, childish on the part of all the RIGHT WING jerks who SAW NOTHING WRONG with JUSTICE SCALIA taking gifts and spending vacations PAID FOR by those who actually had cases coming up before SCOTUS AND NOT ONE FUCKING TIME DID HE RECUSE HIMSELF.”
I just love it when people accuse me of being a partisan hypocrite without bothering to check what I have written. As it happens, I wrote a great deal about Scalia’s infamous hunting trip, which I unequivocally condemned as creating the appearance of impropriety. (It was, however, factually less troubling than the Clinton-Lynch meeting, as Scalia and Cheney were never alone during the trip in question.) So for people like Andrea (though not Andrea herself, who won’t be able to get back on this site if she recruits an army of Myrmidons), I will hereby post the two Scalia essays, which currently reside only on the Ethics Scoreboard, now an archive of my ethics commentary prior to 2010.
Unfortunately, the site’s search function stopped working when I had to change platforms recently. If you want to check out the Scoreboard now, just use Google: type “Ethics Scoreboard” and the subject or topic. If there was commentary, you’ll find it.
To give due credit, Andrea did identify real hypocrisy on the Lynch issue. Many of the Democrats exposing themselves as corrupted by partisan bias by now trying to defend Lynch also furiously attacked Scalia’s appearance of impropriety. They—your idols, Andrea— have no integrity. I do.
Here was what I wrote about Scalia’s clear appearance of impropriety in 2004.
Supreme Court Justice Antonin Scalia recently went hunting with Vice President Cheney, even as the Supreme Court prepares to rule on whether the documents pertaining to Cheney’s meetings with energy company officials regarding future US energy policies must be made public. This has led to critics calling for Scalia’s recusal from the case, on the grounds that the social contact renders his objectivity in the matter suspect. Scalia, feisty as always, denies this, and maintains that he is fully capable of ruling objectively.
And I’m sure he is, but that’s beside the point. In the case of judicial independence, it is often appearances that count, and because this is an issue particularly charged with partisan passions, the Supreme Court must avoid any hint that cronyism or personal loyalties are playing a part in the outcome of the legal showdown. Scalia should remove himself from the case.
Justice Scalia has pointed out that personal friendships between the justices and Washington leaders are commonplace, and that mere friendships among professionals should not raise the specter of favoritism or bias. Indeed, had Scalia maintained exactly the same collegial relationship with Cheney, but avoided the hunting trip, there would be no issue. But the outing conjures images of male bonding and frank talk by the campfire (lobbying, perhaps?), and if Justice Scalia were to rule Cheney’s way (and Scalia’s past opinions would suggest that this is likely), the legitimacy of the ruling would be, in the eyes of many, tainted. But there is more.
According to the L.A. Times, Scalia was flown to the hunting reserve on the small jet that serves as Air Force Two. That could be interpreted as a gift to a judge from a pending litigant. The trip has value, and judges are not supposed to accept things of value under circumstances where it calls their objectivity into question. This alone would justify a recusal. And there’s a “strike three.”
The Times reports that the reserve where the duck hunting took place is owned by Wallace Carline, the head of Diamond Services Corp., an oil services firm that is on 41 acres of waterfront property in Amelia, La. The company provides oil dredging, pile driving, salvage work, fabrication, pipe-rolling capability and general oilfield construction. There is no indication that he has a direct stake in the case, but he is an energy executive. So we have a Supreme Court Justice ruling on whether materials should be released regarding the input of the energy industry into national energy policy in meetings held by the Vice-President, after he spends a hunting trip with the Vice-President, who has also provided charter jet transportation, at a hunting reserve where he is the guest of an energy executive.
Come on, Justice Scalia.
Ethics Scoreboard acknowledges that Scalia has reason to dig his feet in on this issue: he has been accused of conflicts before, on flimsy grounds: it was insulting and absurd to suggest that his appointment to the Court by the first President Bush influenced his opinion in Bush v. Gore, for example. Supreme Court Justices serve for life, and represent the most distinguished careers in the legal profession; they have earned reputations for integrity. It would be a breach of judicial ethics for Scalia to permit Cheney to have a private audience on the merits of his case; we have to assume that the trip included a “no discussion of the case” rule. But there is no avoiding reality. The hunting trip, fairly or unfairly, has called Scalia’s impartiality into question. An astute man, he should have anticipated this problem, and kept his friendship with the Vice-President at a distance until the case had been decided. Now, it is not even a close call. The only proper course is to stay out of the case.
There is a danger here, of course. Warm personal relationships between public servants with opposing political views are a tradition in Washington, D. C. and most communities. Increasingly, such relationships are being viewed with skepticism, as if only strangers are capable of fairness, common sense, and publicmindedness. But if all social interaction is removed from public service, the jobs will become unbearable. We ought to strive for an environment in which we regard professionals as unbiased and ethical until and unless they prove otherwise. This is trust. The current environment, in which opponents, the media, and the public begins with the assumption that public servants are not worthy of trust, is unfair to them, and to us.
But trust can also be stretched too far, and the conditions of Scalia’s duck hunt cross any reasonable line.
He was right, dead right, as he sped along; and he’s just as dead as if he were wrong.”
—-From the inscription on William Jay’s gravestone
More about William Jay shortly.
Justice Scalia has now responded formally to calls for his voluntary recusal in the lawsuit claiming that a government committee headed by Vice President Cheney failed to comply with the Federal Advisory Committee Act. In a memorandum spurred by a motion by the Sierra club demanding his recusal, Scalia goes into considerable detail regarding the particulars of his hunting trip (which included the Vice President) that has called his impartiality into question. He also argues persuasively and well to support his contention that a withdrawal from consideration of the case is unwarranted and unsupported by precedent.
Those who (like Ethics Scoreboard) have criticized Scalia for his stance on this controversy have an obligation to read the Justice’s memorandum. They are sure to learn some things, such as why it is unwise to trust media accounts regarding anything more complicated than your typical Sponge Bob Square Pants episode; what constitutes a legally persuasive argument and why even Scalia’s ideological foes admire his sharp intellect and lively writing.
Among the interesting facts and arguments presented by the Justice:
- Scalia has been going on the same Louisiana duck hunting trip, without Cheney, for five years.
- Scalia, learning that the VP was also a duck hunter and not divining that a case involving the Veep was destined to end up before the Court, suggested to his long-time friend and host that he invite Cheney. Cheney, once he accepted, asked if Scalia and his usual hunting partner, his son in law, wanted to fly down to Louisiana on Air Force Two, since Cheney was required by law to use a government plane.
- No extra cost was incurred by the government, because the flight had to take place whether Scalia hitched a ride or not. Scalia, meanwhile, gained no monetary benefit, because he had to purchase a round trip ticket to get the most economical price for his return commercial flight.
- There were 13 hunters in all, plus assorted staff and security personnel. Accounts of Cheney and Scalia huddled together in an intimate duck blind were fanciful.
- Cheney and Scalia were never alone together except for fleeting moments, and they absolutely did not discuss the case.
- Scalia makes a strong case against the contention by the Sierra Club that he should “resolve ant doubts in favor of recusal.” He points out that while this might be a good standard on a Court of Appeals, where a substitute judge would be appointed to step in for the withdrawing judge, on the Supreme Court a recusal threatens to distort a decision because it reduces the panel from nine to eight, making a 4-4 deadlock possible.
- The memorandum uses numerous historical examples to show that disqualifying Supreme Court justices whenever they had a social relationship with named litigants would “disable” the court, as well as to demonstrate the friendships with US officials have never been a reliable predictor of a justice’s vote.
- Cheney is named in the lawsuit in his official capacity as chairman of the energy task force being sued, not personally. Scalia disputes the argument that Cheney has any personal stake in the result “any more than the agency head’s reputation or integrity is on the line in virtually all official action suits.”
Scalia’s strongest salvo is reserved for the Sierra Club’s motion, which, he said, surprised him by citing no valid legal precedents for a Supreme Court justice’s recusal under similar circumstances, but rather relying on the onslaught of newspaper editorials calling for recusal to show that the public has concluded “that there is an appearance of favoritism.” He points to copious prejudicial factual errors and innuendos in the newspaper accounts, and notes that the editorials unanimously misstated the existing standards for recusal.
Ethics Scoreboard makes no pretense of being able to match Justice Scalia’s intellect or knowledge of the law. And he makes one especially chilling point: is appearance of impropriety sufficient to force recusal when that appearance is a false illusion created by inaccurate reporting, sloppy analysis, and misinformed reading of the law? It looked like an easy call based on what appeared in the papers; Scalia’s memorandum is a clarification that shows that his position is not just a product of stubbornness, but of careful scholarship. He wins the debate, hands down.
He should still recuse himself.
This is where William Jay comes in. Like poor Mr. Jay, Scalia is right: there is the potential here for more than one bad precedent, and justices should not permit themselves to be run out of deliberating on politically sensitive cases by partisan misinformation campaigns. But the damage is done. To most of the public, the raw circumstances of the Scalia-Cheney outing will call Scalia’s impartiality into question, and because it is a high profile case, this will damage the public’s faith in the Supreme Court. It isn’t worth it. Americans, even Americans that don’t comprehend the legal requirements of recusal, need to believe in the integrity of the Supreme Court.
Next, the Court should recognize the new political realities of its role, and devise a review system that would make the whole court the arbiter of whether one of the brethren has a conflict, or an unacceptable appearance of one. Such a system would have made Scalia’s current dilemma less of a lightning rod for criticism.
For now, though, Justice Scalia needs to face facts: he may be right on the law, but he’s a dead man walking.
Verdict on the Ethics Alarms Lynch post and the Ethics Scoreboard Scalia-Cheney posts 12 years ago: Consistent in every way.
Graphic: Geek of all trades