HOW HE SEES IT A close but unreasonable observer



By PAUL CAMPOS
SCRIPPS HOWARD NEWS SERVICE
In the bad old days, when liberal judges dominated the federal courts, conservative critics complained bitterly -- and often with justification -- about the arrogance of an "imperial judiciary" that ignored popular opinion in its elitist confidence that it knew what was best for the American people.
Although the political composition of the federal courts has changed quite a bit in the past couple of decades, such complaints have not. It's still part of the standard conservative credo that many federal judges are liberal elitists who decide cases on the basis of their political inclinations, rather than the law.
Those who specialize in such complaints ought to read Justice Antonin Scalia's March 18 memorandum, in which he denies a motion by the Sierra Club asking him to recuse himself from a case pending before the Supreme Court. That case involves the records of the National Energy Policy Development Group, headed by Vice President Dick Cheney. Environmental groups and others want to know what role, if any, energy officials played in shaping the group's development of White House energy policy.
Hunting trip
Two federal lower courts ordered Cheney to turn over documents. Cheney refused, and instead appealed to the Supreme Court. Three weeks after the court agreed to hear the case, Justice Scalia went on his now-infamous duck-hunting trip, flying with Cheney from Washington to Louisiana on Air Force Two, where they spent two days together, wielding weapons of duck destruction in a murky corner of the Bayou.
Federal law requires a judge to recuse himself from a case if his "impartiality might reasonably be questioned." What cannot be reasonably questioned is that it's a monumental error in judgment for a Supreme Court justice to go on a two-day hunting trip with the vice president of the United States, when the legality of controversial decisions made by the vice president is the subject of a suit pending before the court.
Respectable arguments can be made as to why a justice who has placed himself in this position still might properly choose to participate in the decision of such a suit, but Justice Scalia's memorandum doesn't make them. Instead, he engages in 21 pages of egotistical bluster and posturing, in the course of which he makes various claims that, as lawyers say, don't pass the red face test.
'Reasonable observer'
The most amusing of these consists of turning the "reasonable observer" test -- which under federal law is supposed to decide whether a judge is required to recuse himself -- into what might be called the "I'm a reasonable observer, and I didn't observe anything that makes me question my impartiality" test. Justice Scalia's argument, in short, is that anyone who viewed things "from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances" would agree that his impartiality could not be reasonably questioned under these circumstances.
Anyone not intoxicated with the arrogance that power breeds would have noticed that the reason this dispute exists in the first place is that the only two people who are in a position to know "all the surrounding facts and circumstances" regarding whether this hunting trip impaired the justice's presumed impartiality are the justice himself and man whose case he is deciding.
As those who are familiar with his writings can attest, one of Justice Scalia's favorite words is "canard." In English this is a fancy term for "lie;" in one of those coincidences that poets love and logicians loathe, it also happens to be the French word for "duck." A reasonable observer might conclude from this that the Law, or God, or possibly both, have a better sense of humor than the typical federal judge.
XCampos is a law professor at the University of Colorado.

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