On his own incorruptibility, Scalia doth protest too much

U.S. Supreme Court Justice Antonin Scalia took the extraordinary step of issuing a 21-page explanation for why it was perfectly proper for him to travel as a guest of Vice President Dick Cheney on Air Force 2 to a hunting lodge in Louisiana where Cheney was a guest -- by virtue of Scalia's invitation -- for duck hunting and fishing at a private lodge.
The trip came three weeks after Scalia knew that an important case directly involving the vice president would come before the court and about three months before the case would be argued.
Scalia should have saved the paper that his explanation was written on. His writing does him a disservice in displaying his tin ear for what the public might perceive as reason to suspect impartiality. His tortured logic in comparing this trip to an invitation to dine at the White House and his attempts to minimize the importance of the instant case to the vice president is an insult to the reader.
Holes in his story
He takes pains to point out that he was never alone with Cheney during their stay at the lodge, and that he did not he share a duck blind with the vice president. He glosses over the fact that the only guests on Air Force 2 with the vice president for the trip south were Scalia, his son and his son-in-law.
He cites instances in the past in which justices took trips with government officials having business before the court, but neglects to note that his examples predate the 1974 federal rule that calls for a judge's disqualification when his or her "impartiality might reasonably be questioned."
He mocks a submission of newspaper editorials that unanimously called for him to step aside as unreflective of whether the public might reasonably question his impartiality in the case. Then he haughtily declares: "If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined."
We would ask, if the trip -- one he made five times before outside the vice president's company -- were of such little consequence or value, why did he not simply do the prudent thing and forego this year's excursion? Clearly it was a trip on which Scalia placed enough value that he took it, even knowing that it would open him to criticism if it were to become public knowledge.
Perhaps he thought the trip would never come out. Or perhaps he thought he could -- as he did when the story broke -- simply ignore it. Indeed, it is interesting to read Scalia's skewering of the press for various factual errors about the length of the trip or the occupation of his host, when it had been in Scalia's power from the first day to set the record straight. Instead, both he and the vice president stonewalled.
There's a certain poetry to that, since the case before the court involves a stone wall erected by the vice president -- one designed to keep the public from seeing what went on when Cheney was in charge of developing the nation's energy policy.
Executive privilege
The vice president claimed that his task force was free to meet behind closed doors, without acknowledging so much as the identities of the men and women who would provide the facts and opinions on which the policy was built.
The lawsuit was filed by two watchdog groups, the Sierra Club and Judicial Watch, which sought to force Cheney to release records of the planning sessions. They thought the American people ought to know if national energy policy was driven by a cadre of energy executives, to the exclusion of environmentalists or consumer interests.
That doesn't seem unreasonable. And, given the subsequent multibillion dollar energy debacle in the Western states, and the collapse of Enron (which it is known to have had input into White House policy), disclosure would seem to be in the public interest. Depending on what's disclosed, Cheney might suffer political consequences.
Not to hear Scalia tell it. He describes the case as a "run-of-the-mill legal dispute about an administrative decision." He also refuses to acknowledge that Cheney's reputation or political well-being could be impacted by the court's ruling.
Scalia writes, without any apparent sense of irony, that he will not step down from the case because: "The people must have confidence in the integrity of the Justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, and in an atmosphere where the press will be eager to find foot-faults."
Flawed system
We would suggest that the people's confidence in the court would be better served by a system that did not allow Scalia to decide for himself whether his actions give even the appearance of impropriety. An accusation of prejudice against any lower court judge would have been heard by an impartial third party. Supreme Court justices allow themselves to be both judge and jury when an accusation of prejudice is lodged against them.
Such a self-serving system is obviously not designed to inspire public confidence. But Scalia and his colleagues appear unconcerned with that. At least they are not so concerned that they are willing to subject themselves to outside scrutiny.
Dare we wonder whether such a culture of entitlement might color the way the justices rule on a vice president's claim that he answers to no one?
Scalia, who considers himself a strict constructionist and a stalwart defender of the Constitution, cannot see that his decision damages not only his credibility, but that of the court and the other two branches of government.
The Founders wrote checks and balances into the Constitution for good reason. Scalia now tells us that although justices and presidents and congressmen live and work together as one big, happy family, we outsiders should not be alarmed. In Scalia's world, our only role is to trust him and his pals to do what's right.