On Law: Scalia and those ducks

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent   |   Jan. 23, 2004 at 11:08 AM

WASHINGTON, Jan. 23 (UPI) -- Both groups trying to pry open the records of Vice President Dick Cheney's energy policy group are at least cautiously considering a motion for Justice Antonin Scalia's withdrawal from the case.

But such a motion wouldn't be filed any time soon, if at all. The Supreme Court is due to hear argument in the dispute in April.

Friday, Judicial Watch President Tom Fitton said, "We're researching the issue" of whether to ask Scalia to withdraw from the case. "You know, are the (conflict of interest) questions as grave as some in the media and politics are implying? We are great admirers of Justice Scalia, and accordingly, we trust his judgment."

Alan Morrison, the Public Citizen attorney representing the Sierra Club, said this week that any decision by his group on asking Scalia to withdraw from the case would come after all the facts were examined. "We have plenty of time before the case is heard," Morrison said.

The present controversy began when Scalia accompanied Cheney on a hunting trip to Texas one month after the Supreme Court agreed to hear the case this spring. The two men reportedly flew down to the Lone Star State on a private jet owned by an energy corporation.

The Supreme Court operates like no other government entity. The justices' schedules are not normally given to the media, and there was no advance word from Scalia's chambers that he would be going on the trip with the vice president, an old friend from their Nixon administration days.

But as usually happens in these cases, word spread. First there were reports in local Texas papers, in which a visit by the vice president accompanied by a Supreme Court justice is a big deal. Then the news wires picked up the story.

The story went national when David Savage, the soft-spoken Supreme Court reporter for the Los Angeles Times, wrote about the trip and put Scalia's participation in the context of the upcoming Supreme Court argument.

Since then, the issue just won't go away. In fact, the media is beginning to look at other Scalia trips.

Two Democratic senators, ranking Judiciary Committee member Patrick Leahy of Vermont and presidential contender Joe Lieberman of Connecticut, say they've sent a letter to Chief Justice William Rehnquist questioning the propriety of the Cheney-Scalia trip.

The bare bones of the case are these: One of President George W. Bush's first acts on taking office was to order Cheney to form a national energy policy advisory group composed of senior administration officials. The group would construct the nation's energy policy.

Federal law allows officials to keep the records of advisory groups secret as long as all the participants are public employees. But Judicial Watch, joined by the Sierra Club, said Cheney invited Enron executives, other energy company figures and energy lobbyists to the table, and they want to see what went on behind closed doors.

A lower court has ordered Cheney to produce the records as part of the evidence needed for a trial on the dispute. The Justice Department, noting Cheney could face a civil contempt citation, asked the Supreme Court to review.

In light of all this, you would have thought Scalia would have been more careful about his contacts with Cheney before the upcoming Supreme Court argument. After all, Scalia has already withdrawn from hearing April argument in the Pledge of Allegiance case because he said in a summer speech that the phrase "under God" should not be removed from it.

There's also something a little comic about the latest controversy, with all these portly men being trundled down in the lap of luxury to shoot semi-tame game birds on the Texas Prairie. Scalia subsequently told the Los Angeles Times that the few ducks he shot were "delicious."

Scalia compounded the humor by getting up between arguments at the court earlier this week and staring hard into the press section -- something he normally would never do -- like a teacher trying to catch the students throwing the spitballs.

The dispute would be genuinely funny, not slightly comic, if it weren't so damn serious.

Can Scalia be objective in a case that involves his old friend Cheney, even if the two see each other on a regular basis? Of course he can. Scalia's vote in the case would be the same, whether he knew Cheney or not. The justice may be one prickly customer, but he's not corrupt.

That's not the point.

Federal judges are supposed to withdraw from a case when their participation would undermine the public's confidence in the fairness of the court.

Fairly or unfairly, the Supreme Court's credibility took a beating with the 5-4 decision along the court's ideological fault line in 2000's Bush vs. Gore. If Scalia sits and helps to render judgment in the Cheney case, it won't destroy the court's effectiveness.

But, fairly or unfairly, it won't help.

If Scalia does withdraw the Cheney case could result in a 4-4 tie on the Supreme Court -- which would mean the lower court ruling would stand and the vice president would have to disgorge the contested records

Will Scalia withdraw?

Probably not. Unless and until a recusal motion is actually filed, or Rehnquist puts a word in his shell-like ear.

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(Mike Kirkland is UPI's senior legal affairs correspondent. He has been covering the Supreme Court and other parts of the legal profession since 1993.)

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