March 24, 2004

Caught him!

Gross ethical violation spotted at the Times.

Posted by richard at March 24, 2004 05:41 PM

This is incredibly interesting. Who doesn't do this? It is the only way to get from Point A to Point B in an economical way. It is only because the airlines try to extort the business traveler that it even works. On a personal trip, are they/should they be held to a standard that is higher than ours? It actually raises my respect for this Supreme Court Justice. Why can't they be human just because they are on the highest court in the land? Gross ethical violation?

Posted by: dickv at March 24, 2004 09:19 PM

I guess my sarcasm wasn't clear in the 7 words of the post.

I just think it's absurd that the authors thought this was worth writing about. The story goes:

  1. Scalia and Cheney went duck hunting together last year
  2. Scalia will be sitting for a case where Cheney is the defendent (it's about releasing records for his energy task force)
  3. Many people who want Cheney to have to produce the records, including the op-ed pages of the NYT, said Scalia should recuse himself because of this trip
  4. Scalia wrote a compelling opinion that he should not recuse himself and detailing the circumstances of the duck hunting trip
  5. The authors claim that, even if his opinion is correct, it was a confession to promissory fraud, because he misused the round trip ticket

Like I said. Just ridiculous.

Posted by: richard at March 25, 2004 09:38 AM

Do you remember Fox Evening News breaking the story that Rudy Giuliani's driver was leaving his car on all day long, so it would be warm when Hizzoner got inside it? Taxpayer gasoline + environmental impact = big expose.

This is sort of like that.

Posted by: Brad A. at March 25, 2004 04:35 PM

Actually, now that I think about it, it's probably dumber.

Posted by: Brad A. at March 25, 2004 04:36 PM

OK, it does seem a little bit petty and it doesn't seem to have bearing on whether Scalia should hear the case or not. (I'm not a legal scholar, so I wonder you think his opinion is "compelling.")

But just because you don't like the rules, and many people don't follow the rules, doesn't make it right. And Supreme Court justices--especially those espousing "strict" interpretations of the law--ought to be held to a higher standard in their lives and in their official opinions as Supreme Court Justices.

- Mike

Posted by: Michael W. at March 26, 2004 10:10 AM

Well, I found it compelling (really, not just "compelling") both because of the logical argument and the precedent he pointed to. He explained that the popular account of what happened was wrong. He and Cheney had been the guest of a third-party that Scalia had hunted with before – Cheney hadn't invited him. He rode in Air Force 2 because there was space available, but bought his own round trip ticket. He spent no "intimate" one-on-one time with Cheney at the camp and they didn't discuss the case.

Also, he talked about how the case was not against Cheney the person, but against Cheney in his official capacity. This is important because it has different recusal requirements. If Cheney is voted out of office before this finishes in court, the case name would automatically be changed to the new VP because we sue the office, not the man.

He argued that the Supreme Court has traditionally set itself a very high recusal bar, because a recusal is basically equivalent to a No vote for the appellant (since they need 5 Yes's to overturn). They really only recuse in cases where the life, freedom or fortunes of a family member or close friend are at risk.

He points to several other cases (a couple involving Robert Kennedy as AG) where there were much closer relationships between parties and justices and as much, or more, reputation on the line, and there was no recusal. He also notes the plaintiff's lack of any precedent for recusal in a similar case.

As for the importance of a strict interpreter strictly abiding by the law, I remain unconvinced (despite what the two professors wrote) that buying a round-trip ticket and only using half is promissory fraud. I believe it has more to do with the airlines saying how they will act (i.e. they can refuse to honor the second half if you don't use the first, or they could charge you more for you to fly) than it is about what you are compelled to do.

Posted by: richard at March 26, 2004 10:34 AM

The official capacity/personal capacity distinction has to be made or appeals to the SCOTUS would be unworkable — at least, unless the Nine were partitioned off from the rest of Washington for extended periods.

Most lawsuits challenging official action are brought against the top official of the challenged department — ______ v. Ashcroft is, for example, a popular case name. Environmental suits usually name the Secretary of the Interior. So Cabinet members and high-level officials are regularly "haled" into the Supreme Court on legal matters; to require the Justices to cut off all communications with such people for this reason would be to make them even more vulnerable to criticism, on the basis that they're too removed from the Real World, than they already are.

Scalia, J., was probably right not to recuse himself — the press furor means more, as I suspect, to criticize what appears to be a particularly caricaturish application of the conservative old-boy network, wherein right-wing bigwigs go off on weekend jaunts in big taxpayer planes and shoot guns together. If the stereotype fits . . . why not exploit it?

Mike F. wanted it known that, to the extent that you object generally to integrity attacks revolving around "everybody-does-it" actions, good for you. If you were — as seems to him to be a trend — prowling the Times for naked exhibits of liberal bias, he would like to point out that the Repubs' attacks on Clinton's AG nominees for their under-the-table payment of "hired help" was equally petty (although, for my part, these challenges were probably more directed at exposing a certain irony in the tendency of Democratic officials to tout themselves as populists — thereby helping develop a caricature of leftist politicians as privileged elites dressing up like Regular Joes . . . ahem! John Kerry.).

But Mike is trying to restrain himself from posting, so all this comes through me.

Posted by: Brad A. at March 29, 2004 04:18 PM