Justice Antonin Scalia's 21-page explanation of why he refuses to recuse himself from a case involving Vice President Dick Cheney after the two of them went duck-hunting proves that justice is more deaf than blind.
Scalia acknowledged the blizzard of negative newspaper editorials and the "embarrassing criticism" suggesting that his trip with Cheney creates an appearance of potential bias, but he concluded that it's a bunch of hooey, or as he put it "a blast of largely inaccurate and uninformed opinion."
To demonstrate there was nothing unusual or untoward about his and Cheney's outing, Scalia reached back into American history to offer up numerous examples of chumminess among Washington's elite. For example: President Rutherford B. Hayes would host Justice John Marshall Harlan and his wife at the White House for a hymn-fest. "A rule that required members of this court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling," Scalia wrote. He said because Cheney was not being sued personally, but as an official of government, there is no reason to step aside.
The tin-eared Scalia is very good at rationalizing his behavior but not at hearing the well-grounded concerns of his critics. This case is not just about Cheney as a representative of government. It involves his personal conduct relative to secret meetings held with energy industry insiders. The Sierra Club and Judicial Watch have filed suit seeking information on the participants in Cheney's energy task force. A lower court has already ruled against him, and now the Supreme Court will make the final judgment. If Cheney wins in a close vote, with Scalia on his side, the public will be left to wonder whether the trip to the Louisiana hunting camp, with Scalia traveling there on Cheney's plane, had any influence on the outcome.
It doesn't matter if Scalia believes he can be impartial despite his coziness with Cheney. What matters is whether the trip disturbs the confidence people have in the fairness of the upcoming proceedings. That alone is reason enough for Scalia to recuse himself.
