Tony Scalia

Justice Scalia's motion to deny his recusal from the Cheney Energy Task Force case reads like the testimony of mafia don who the government is trying to indict. Scalia scoffs at the idea that is impartiality could "reasonably be questioned" from a two day hunting trip with Vice President Cheney. The justice emphasis that this standard "is to be made in light of the facts as they existed, and not as they were surmised or reported" so he sets out to explain the facts.

Scalia explains that he and Cheney, "as it turned out, I never hunted in the same blind." And he claims that they were never alone together. However, this is after he explained that he (and two of his sons) took a five hour trip from DC to Louisiana with Cheney - part of which was in a government jet. Along the way they met up with the host before meeting with the rest of the hunting party. (Scalia clarifies that the host was not an "energy industry executive," but the owner of a "company that provides services and equipment rental to oil rigs in the Gulf of Mexico" Big difference there!!)

Scalia's description of the events lacks any description of a back room secret meeting between him and Cheney. But of course it does, and I would be surprised if that actually happened. Scalia states "[o]f course we said not a word about the present case." Just like a mob boss never tells the hit man to kill anyone, these things don't have to be spoken. (Scalia notes that "Washington officials know the rules, and know that discussing with judges pending cases their own or anyone else is forbidden." Mob bosses know the rules too.) The concern is not that Cheney was taking the time to lobby Scalia to decide the case in his favor, the issue is simply whether or not Scalia's impartiality can be "reasonably questioned" - whether or not he and Cheney are too close of friends.

He goes on to explain that it is not uncommon in history for Supreme Court Justices and government officials to meet for social events. He lists several occasions where the President and a Justice have dinner, or are at parties together. But there is a big difference between a night out, and a five hour trip to Louisiana for two days of hunting and fishing, even if there are other people around.

One of the most stunning statements Scalia makes is "[n]othing this Court says on those subjects will have any bearing upon the reputation and integrity of Richard Cheney." It is as if we are suppose to believe Scalia does not realize how important this case can be in the next election, and if it goes against Cheney, what the possible consequences could be. If the Supreme Court rules that Cheney has to release the information from the Energy Task Force meetings, it will undoubtedly be damaging to the Bush-Cheney re-election efforts. Even if there is no damaging information that comes out (which is highly unlikely), just the fact that Cheney was forced to reveal something he had been hiding for so long, and that the Supreme Court ruled that he was wrong all along, is negative.

Scalia finishes with a classic line, which attempts to misdirect the issue. "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." It is not that Scalia got to fly on the government jet, or that he was able to sit at the table with Cheney that will lead him to change his vote. The issue, even with all the facts out (at least told by Scalia) is, in Scalia's words - "whether a judge's impartiality can 'reasonably be questioned' ... in light of the facts as they existed, and not as they were surmised or reported." Here the burden of proof is far lower than what it takes to indict mob boss in a criminal case - it is not beyond a reasonable doubt, just if it is reasonably questionable that the relationship between him and Cheney could affect his decision. Fortunately, the people of the Nation are not that stupid.

Scalia Won't Sit Out Case On Cheney (washingtonpost.com)