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Scalia Has a Tin Ear on Conflict of Interest

John Farmer
Newhouse News Service
March 22, 2004

Justice, as depicted in idealized form, is blind. In Justice Antonin Scalia’s case, it’s also tone deaf.

Scalia, as the world now knows as a result of his 21-page brief protesting his own immunity to what other mortals might consider a conflict of interest, has refused to recuse himself from a Supreme Court case involving Vice President Dick Cheney’s closed-door deliberations on national energy policy.

Cheney refuses to tell whom he huddled with — a bunch of oil and gas guys, like himself, bent on drilling from coast to coast, with tax breaks in the bargain.

Cheney is a longtime Scalia pal, dating back to their days in the Ford administration 30 years ago. In fact, Scalia wangled an invitation for Cheney to join him in a bit of duck hunting at the Louisiana camp of an energy equipment company owner. In return, Cheney gave Scalia and a couple of the justice’s kin a lift in Air Force Two to the blood-sport bacchanal.

So recusing himself would seem a no-brainer for Scalia — if not in the interest of his own reputation, then on behalf of a high court already suspect as overly political. But not as Scalia sees it.

Writing in the acerbic style that’s his hallmark, Scalia not only defended the ethics of his position, but seemed even to question the right of the plaintiffs in the case, the Sierra Club, to raise the recusal question at all, deriding what he called its “blast of inaccurate and uninformed opinion.” How dare they!

Scalia is a vivid, gifted writer, as even his legal critics on the left acknowledge, and he makes some valid points in his memo. He notes, for example, that many justices have made their way to the high court “precisely because they were friends of the president or other high officials” and have retained “close personal friendships” with their political patrons. At another point, he observes that “if it’s reasonable to think that a Supreme Court Justice can be bought so cheap, the nation is in greater trouble than I had imagined.”

Correct on both counts. Justices over the years have been drinking buddies and poker pals of presidents and other top executive branch officials — though, frankly, that should be a no-no. (Some distance between judges and those they may be called on to judge would seem the minimum propriety would require.) And no one who has followed his career believes Scalia’s vote can be purchased by friendship. But both counts are beside the point.

The issue here is the appearance of impropriety at a critical time for the high court.

Not all eras are so sensitive for the court. Most times, the high court agenda is relatively politics-free. Others, like the Civil War decade and the New Deal era in the 1930s, embroiled the court in the political passions of the day. This is one of those times, making it more imperative than ever that the court appear above the politics of the moment. Scalia seems tone deaf to that need.

This Supreme Court is already on a partisan watch list for its 5-4 vote — with an all-Republican majority — that made Cheney the vice president. Consider the awful appearance if the court now were to decide in Cheney’s favor in the Sierra Club matter — by a 5-4 vote, with Scalia making the difference for the vice president.

There are parts of Scalia’s defense of himself that seem downright dubious, even as legal argument. He writes, for instance, that recusal might be in order if the case involved Cheney’s personal activities or his freedom — things in which the vice president has a strong private, personal stake — but not, Scalia contends, where his official actions are involved. The implication is that Cheney’s official actions are less threatening to his reputation and future prospects, and thus free of any possibility of a conflict for his friend Scalia.

Don’t believe it. Cheney and President Bush are fighting for their political lives; their credibility is at stake in this election. They have a vested political interest in concealing just whom Cheney consulted in shaping a blatantly pro-industry energy policy while excluding environmentalists. This case is a big deal — for Bush as well as Cheney — and a friendly Scalia could be important as an advocate in the high court conference, as well as a voting jurist.

This is not the first time Scalia, a combative fellow with a lofty sense of his own rectitude, has seemed insensitive to potential conflicts. According to the Los Angeles Times, he accepted a speaking engagement before a Philadelphia religious group opposed to homosexual marriage and legal claims while the high court had a pending case involving a Texas sodomy law and also took a trip with a Kansas law dean who was preparing to argue a case before the high court.

The guy just doesn’t get it.

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