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Duck-blind justice

Published January 21, 2004

If judges are supposed to avoid even the appearance of bias, then U.S. Supreme Court Justice Antonin Scalia can't possibly defend his recent choice of duck-hunting buddies.

Just three weeks after the high court agreed to decide whether Vice President Dick Cheney broke the law when he held secret meetings with energy industry lobbyists, Scalia and Cheney boarded a Gulfstream jet bound for a hunting trip in southern Louisiana. Somehow, Scalia, appointed in 1986 by President Reagan, sees no conflict.

In defending the trip, Scalia likened it to a Washington social encounter. "For example, Supreme Court justices are regularly invited to dine at the White House," he wrote, "whether or not a suit seeking to compel or prevent certain presidential action is pending."

Whether such dinners in the White House are judicially prudent is a far different matter than whether Scalia ought to hike through the Louisiana woods, shotgun in hand, with a hunting buddy whose conduct is the very substance of a case the court had just agreed to hear on appeal. Cheney is the defendant in the case, brought by the Sierra Club and Judicial Watch, and the lower court ruled against him. Does Scalia think no one will notice if he now writes an opinion overturning the appeals court and exonerating his pal?

The federal code of judicial conduct requires that any justice "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." That provision, in fact, compelled Scalia to remove himself in October from a case involving the constitutionality of the words "under God" in the Pledge of Allegiance. While the pledge case was on appeal, Scalia had spoken publicly on the issue at a Religious Freedom Day appearance in Virginia.

In the Cheney case, Scalia ought to know better. The high court is still suffering from the political stain left by its decision on Florida's votes in the 2000 presidential election, a case in which Scalia's son was a member of the law firm representing candidate George Bush. For Scalia now to shoot ducks with Cheney, under the current circumstances, only wounds the court further.

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