Scalia and Cheney in duck soup

[shemp]

Scalia-Cheney Trip Raises Eyebrows (http://www.cbsnews.com/stories/2003/12/15/politics/main588582.shtml)

(CBS) Vice President Dick Cheney and Supreme Court Justice Antonin Scalia spent part of last week duck hunting together at a private camp in southern Louisiana, just three weeks after the court agreed to take up the vice president's appeal in lawsuits over his handling of the administration's energy task force, the Los Angeles Times says in its Saturday editions.

While Scalia and Cheney are avid hunters and longtime friends, several experts in legal ethics questioned the timing of their trip and said it raised doubts about Scalia's ability to judge the case impartially, the newspaper pointed out.

But Scalia rejected that concern Friday, telling the Times, "I do not think my impartiality could reasonably be questioned."

Federal law says "any justice or judge shall disqualify himself in any proceeding in which his impartiality might be questioned," the Times notes.

Why, I would NEVER question Scalia's impartiality! Ya, sure, ya betcha!

But perhaps the ducks were too smart for them:

"The justice had been here several times before. I'm kind of sorry Cheney picked that week because it was a poor shooting week," Naquin said. "There weren't many ducks here, which is unusual for this time of the year."

Scalia agreed with the sheriff's assessment.

"The duck hunting was lousy. Our host said that in 35 years of duck hunting on this lease, he had never seen so few ducks," the justice said in his written response to the Times. "I did come back with a few ducks, which tasted swell."

I guess he can't tell the difference between duck and crow.

[Regnad Kcin]

But Scalia rejected that concern Friday, telling the Times, "I do not think my impartiality could reasonably be questioned."Oh my.

Duck hunting? That's a whopper of a fish story!

[Frank Newgent]

Originally posted by Regnad Kcin

Duck hunting?
Or hunt ducking?

[American]

Originally posted by shemp
Scalia-Cheney Trip Raises Eyebrows (http://www.cbsnews.com/stories/2003/12/15/politics/main588582.shtml)


Why, I would NEVER question Scalia's impartiality! Ya, sure, ya betcha!

But perhaps the ducks were too smart for them:

I guess he can't tell the difference between duck and crow.


I think it's great you've decided to do something with your life, Shemp... Becoming a Certified Dumbass is a bold step toward achieving your ultimate dreams.

[clk]

Originally posted by American



I think it's great you've decided to do something with your life, Shemp... Becoming a Certified Dumbass is a bold step toward achieving your ultimate dreams.

Unfortunately, he's still a long way from becoming a Chief Dumbass, such as yourself.

[shemp]

Of course, American never posts anything dumb.

Elton John totally copied REO Speedwagon (http://www.randi.org/vbulletin/showthread.php?threadid=32963)

[demon]

Hey , they are just hunting together, what`s wrong with that?
They won`t be talking about nuthin` but huntin...
I hope that has put everyone`s mind to rest.


Edited to add: thats so long as they are hunting on Planet X of course. If they are hunting together on Planet Earth then we are getting stitched up again.

[NightG1]

Originally posted by shemp
Of course, American never posts anything dumb.

Elton John totally copied REO Speedwagon (http://www.randi.org/vbulletin/showthread.php?threadid=32963)

Thank you Shemp. That was the funniest example of someone being pants'ed since ICan stole those Loch Ness photos.

[clk]

Originally posted by shemp

Elton John totally copied REO Speedwagon (http://www.randi.org/vbulletin/showthread.php?threadid=32963)

Oh man, that is one hilarious thread! Everyone go look at it! It's a guaranteed good laugh.

[charley_bigtime]

Originally posted by clk


Oh man, that is one hilarious thread! Everyone go look at it! It's a guaranteed good laugh.

Yeah, funny guy that American.

[davefoc]

Shemp,
Do you think it is possible that out of respect for their friendship, the constitution and the independence of the judiciary that Cheney never brought the issue up?

And that if Cheney had brought it up, Scalia would have refused to discuss it because it would have been inappropriate?

I was listening to Ted Kennedy the other day going on about the mistakes that the Bush administration had made with regards to the Iraq war and I was wondering if he wasn't right when he kept going and decided that Bush couldn't just be wrong he had to be evil too and the whole war was just part of the Evil Bush administration's efforts to gain favor and win the next election. So what if it costs thousands of lives.

I'm just not that convinced that people in power are always evil and corrupt. Can't there be some altruistic, idealistic ones in power too, even if by your judgment they're wrong?

[Nova Land]

Originally posted by davefoc

Do you think it is possible that out of respect for their friendship, the constitution and the independence of the judiciary that Cheney never brought the issue up?

And that if Cheney had brought it up, Scalia would have refused to discuss it because it would have been inappropriate?Certainly this is possible.

However, the question for me is not simply whether these two did behave improperly (although that is certainly an important concern).

As the cliche goes, Caesar's wife should be beyond reproach. It's not enough for certain high officials simply to refrain from wrong-doing, it is important that they visibly refrain from it.

Because we were not present on their duck hunting trip, we have no way of knowing whether they behaved properly or not. The possibility that they could have discussed the case is an obvious one, and neither Scalia nor Cheney should be surprised (or offended) that the thought they might have talked about it crossed people's minds.

There are enough times when, through no fault of their own, public officials find themselves in a position where they must ask the public to trust them. To deliberately put oneself into a position where questions like this come up, and where they are in effect saying "Trust us!" and "You weren't there, so you can't prove we did anything wrong," is irresponsible.I'm just not that convinced that people in power are always evil and corrupt. Can't there be some altruistic, idealistic ones in power too, even if by your judgment they're wrong? I too am not convinced that people in power are always evil and corrupt, and like you harbor the hope that some of them (including ones I disagree with politically) are honorable people doing their best.

But since we know that venal and corrupt politicians do exist, I think that makes it even more important for those who are honorable to go out of their way to avoid not simply impropriety but also the appearance of impropriety. Politicians who are truly "public servants" should be willing to go that extra mile.

The fact that Scalia and Cheney did not go that extra mile does not mean they are corrupt. But it does indicate to me they are, at best, thoughtless and lacking in respect for the public they are supposed to be serving.

[davefoc]

Nova Land,
I agree with your view. However, I felt that it was asking a lot that two friends might not see each other or at least not be alone with each other while this litigation was pending.

I think though, that you are right. Given the importance, power and prestige of their positions it would have been better if out of respect for those positions they had made this sacrifice.

[Ladewig]

Because we were not present on their duck hunting trip, we have no way of knowing whether they behaved properly or not. The possibility that they could have discussed the case is an obvious one, and neither Scalia nor Cheney should be surprised (or offended) that the thought they might have talked about it crossed people's minds.

There are enough times when, through no fault of their own, public officials find themselves in a position where they must ask the public to trust them. To deliberately put oneself into a position where questions like this come up, and where they are in effect saying "Trust us!" and "You weren't there, so you can't prove we did anything wrong," is irresponsible.

What makes it even more disconcerting is that the case in question arose from Cheney's saying "Trust us. I don't want anyone to see the notes associated with the meetings to form an energy plan." He may have valid reasons for such a position; but especially during a case such as this one, Cheney should go out of his way to avoid raising these issues.

[subgenius]

Its OK they were bought and paid for by Big Oil....I mean the trip was.

The pair arrived Jan. 5 and were guests of Wallace Carline, the owner of Diamond Services Corp. an oil services company in Amelia, La. The Associated Press in Morgan City, La., reported the trip on the day the vice president and his entourage departed.
http://www.boston.com/news/nation/washington/articles/2004/01/18/scalia_trip_with_cheney_raises_eyebrows/

Here's a clue Dick and Tony: the appearances of impartiality are important to maintain faith in the system. Basic first year law school.
From the link:
The code of conduct for federal judges sets guidelines for members of the judiciary, but it does not set clear-cut rules. "A judge should . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary," it says. "A judge should not allow family, social or other relationships to influence judicial conduct or judgments . . . or permit others to convey the impression that they are in a special position to influence the judge."

[Dorian Gray]

Dick doesn't care about 'appearance's sake" - Look at the juicy Halliburton contract!

[zakur]

Story (http://www.upi.com/view.cfm?StoryID=20040123-103002-1312r) 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.

[davefoc]

Dorian Gray said:
Dick doesn't care about 'appearance's sake" - Look at the juicy Halliburton contract!

Good point Dorian. I'm one who generally has a non-cynical view of high public officials. This is not to say that I don't think they lie, obfuscate, coverup and generally mislead people for their purposes. But I think in the end most big decisions are not driven by corruption and cronyism.

It is hard to see what the Bush administration could have done that would make me question that view more than to give Haliburton a big no bid contract. Even if you can make some sort of case that the contract was intended to be in the public good it was still counterproductive to the administration's war effort. There was a large segment of the population who believed that the war was undertaken for various corrupt reasons and this contract was exhibit one in the arguments of a lot of those people.

For me it was the straw that broke the camel's back. I just had had enough of this administration and their non-free market policies (agricultural subsidies, steel protection tariffs, nationalization of airport security, etc) and a questionable war effort that they didn't even think was important enough to avoid actions that could give the appearance of unfettered corruption.

[subgenius]

Its not just no-bids, and overcharges, its kickbacks too

Halliburton, Vice President Dick Cheney's former company, said Friday that it had fired two employees who allegedly accepted kickbacks for helping a subcontractor overbill the Pentagon's Iraq reconstruction program by $6.3 million.
http://www.miami.com/mld/miamiherald/news/nation/7785250.htm

And all of it would be bad enough if Cheney hadn't resigned from Halliburton to take the VP appointment.

As long as there is no great outcry about all of these appearances of impropriety they will continue to rob the American taxpayer blind.

[Ladewig]

And all of it would be bad enough if Cheney hadn't resigned from Halliburton to take the VP appointment.

That should say the VP self appointment. Mr. Cheney was asked to head up a vice-presidential search committee. After a few months he came back and said, "I've examined all eligible Republicans and I have decided that the best candidate is me."

[subgenius]

Who better to put his petro-industrial complex hand inside the puppet head?

[subgenius]

Well, well, well:

Scalia flew as guest on Cheney's plane
Los Angeles Times
PATTERSON, La. -- Supreme Court Justice Antonin Scalia traveled as an official guest of Vice President Dick Cheney's on a small government jet that served as Air Force Two when the pair came here last month to hunt ducks.

The revelation cast further doubts about whether Scalia can be an impartial judge in Cheney's upcoming case before the Supreme Court, legal ethics experts said. The hunting trip took place just weeks after the court agreed to take up Cheney's bid to keep secret the details of his energy policy task force.

According to those who met them at the small airstrip here, the justice and the vice president flew from Washington on Jan. 5.

The Los Angeles Times previously reported that the two men hunted ducks together while the case was pending, but it wasn't clear then that they had traveled together on Air Force Two.

"It means Scalia is accepting a gift of some value from a litigant in a case before him," said New York University law professor Stephen Gillers.

"It is not just a trip with a litigant. It's a trip at the expense of the litigant. This is an easy case for stepping aside."

http://www.chron.com/cs/CDA/ssistory.mpl/politics/2388750

Let's hear from administration supporters on how this is just fine.

[WildCat]

If Scalia doesn't recuse himself from this case it will indeed really, really stink. Scalia is one of the worst SC justices ever.

[subgenius]

It must be a duck.
He's lost his marble (he had but one).

Justice Scalia defends hunting trip with Cheney
WASHINGTON (AP) — Supreme Court Justice Antonin Scalia strongly indicated he will ignore calls to recuse himself from a court case involving his friend and hunting partner, Vice President Dick Cheney.
Scalia told a gathering at Amherst College on Tuesday night there was nothing improper about his accompanying Cheney to Louisiana last month to hunt ducks. The trip came three weeks after the Supreme Court agreed to hear the Bush administration's appeal in a case involving private meetings of Cheney's energy task force.

"It did not involve a lawsuit against Dick Cheney as a private individual," Scalia said in response to a question from the audience of about 600 people. "This was a government issue. It's acceptable practice to socialize with executive branch officials when there are not personal claims against them. That's all I'm going to say for now. Quack, quack."

http://usatoday.printthis.clickability.com/pt/cpt?action=cpt&title=USATODAY.com+-+Justice+Scalia+defends+hunting+trip+with+Cheney&expire=&urlID=9262730&fb=Y&url=http%3A%2F%2Fwww.usatoday.com%2Fnews%2Fwashing ton%2F2004-02-11-scalia-cheney_x.htm&partnerID=1660

Nothing improper. Not a thing. And watch as I dance on the point of a pin.

A "government issue". Yeah the government is just a machine not operated by real people.

[subgenius]

Paul Rothstein, a law professor at Georgetown University, said Wednesday that while the lawsuit does not seek money from Cheney, it would be a mistake to say the vice president does not have a personal stake in it.

"There are reputational stakes, career stakes for Cheney," Rothstein said. "To a man in Cheney's position, those things are as important as money. And in the long run, they mean money."

He said Scalia should recuse himself.

"I'm surprised he's sticking by his guns. I would hope he does see the light," Rothstein said, then added, "He has some of the arrogance that sometimes goes with being very smart."

http://story.news.yahoo.com/news?tmpl=story&cid=558&ncid=703&e=10&u=/ap/20040212/ap_on_go_su_co/scalia_cheney
Quack, quack.

[Regnad Kcin]

Paul Rothstein:
"He has some of the arrogance that sometimes goes with being very smart."Or of being dispreputable. (See also: Election 2000.)

[fishbob]

"I'm surprised he's sticking by his guns. I would hope he does see the light," Rothstein said, then added, "He has some of the arrogance that sometimes goes with being very smart." Arrogance is not an admirable attribute. In my experience, arrogance is most often seen in people who are somewhat less than fully competent and not quite as smart as they would like others to think they are.

Scalia appears to be another fine example.

[subgenius]

I still can't believe he actually said, "Quack, quack", thus inviting the "it must be a duck conclusion.
Does reflect on the reasoning power of his opinions.

[Brown]

The Sierra Club has decided to try to force the issue. From Reuters and Yahoo (http://story.news.yahoo.com/news?tmpl=story&ncid=578&e=6&u=/nm/20040301/pl_nm/court_scalia_dc):The Sierra Club environmental group, which sued Cheney for the task force papers, filed a motion last week asking that Scalia disqualify himself from the case because the January trip had created "an appearance of impropriety."
...
Cheney is being sued by the Sierra Club and another group. They want him to release documents about White House contacts with the energy industry in 2001. The vice president has appealed to the Supreme Court a ruling ordering him to produce the documents.As is customary, the motion to recuse was referred to Justice Scalia first. It is possible that he will recuse himself... but he has already publicly said that he will not do so. Unless he gets some serious pressure from his collegues on the bench, there is little that can be done should Justice Scalia refuse to step aside.

If the eventual decision in the case should happen to be 5-4 favoring Cheney, then there will be a lot of people who will be exceptionally unhappy. The whole affair will reek of cronyism. If the vote is 6-3 or better in Cheney's favor, Scalia's refusal to remove himself from the case would probably be deemed harmless. (The chances that Scalia will write the opinion favoring his hunting buddy are pretty remote.)

In my view, it is bad enough that Justice Scalia is perceived as being a guaranteed vote for Chaney. The duck hunt business just reinforces that perception. The impression that Chaney has Scalia's vote "in the bag" is exactly the opposite impression that the judicial branch ought to convey. Justices on the Supreme Court ought to render decisions according the law, not according to who is their buddy and who isn't.

[Bottle or the Gun]

Originally posted by davefoc
Shemp,
Do you think it is possible that out of respect for their friendship, the constitution and the independence of the judiciary that Cheney never brought the issue up?

And that if Cheney had brought it up, Scalia would have refused to discuss it because it would have been inappropriate?


HA HA HA HA HA HA! Oh, man, that's rich! Oh, and so are Cheny and Scalia.

[subgenius]

Anyone who can't avoid the appearances of partiality is too stupid to be a judge.

[The Central Scrutinizer]

Scalia: It's Duck season!
Cheney: It's Wabbit season!

[davefoc]

Gottle of the Son said:HA HA HA HA HA HA! Oh, man, that's rich! Oh, and so are Cheny and Scalia

I take from this that you think that Cheny and Scalia did engage in improper communication with regard to the upcoming case involving Cheney. Why? Are yo thinking of specific actions by either man that would make you think this?

[DavidJames]

There is no need for Cheney and Scalia to "engage in improper communication". They are on the same team. Do you really think Cheney needs to coerce Scalia to win his vote?

[Brown]

Originally posted by DavidJames
There is no need for Cheney and Scalia to "engage in improper communication". They are on the same team. Do you really think Cheney needs to coerce Scalia to win his vote? This is the sort of perception that the judges I know work hard to avoid. People perceive that Scalia is going to take Chaney's side, even though they have virtually no knowledge about the facts of the case, the legal issues presented, the reasoning of the lower courts, and the assigned bases of error. In other words, without knowing anything about the merits of the case, people assume that Scalia will vote Chaney's way. By fostering this perception, Justice Scalia erodes confidence in the judiciary.

[subgenius]

Originally posted by DavidJames
There is no need for Cheney and Scalia to "engage in improper communication". They are on the same team. Do you really think Cheney needs to coerce Scalia to win his vote?
Of course not, but here's how it goes.
Scalia told Cheney what magic words his attorney has to spout to lock up the necessary votes, and to get to the result while withstanding scrutiny. I had it happen to me in our state supreme court. An out of court meeting between a justice and representatives of my opposing party. At the next remand hearing
the other attorney began injecting issues and words that were previously unknown in the series of cases. Both the judge and I were puzzled at the new issues. Lo and behold these turned out to be the foundation for the decision adverse to my client.
And again, the appearance of impartiality is important to maintain faith in the judicial system. That is as important, if not more important, than the absence of actual, hidden, undiscovered bias.

[davefoc]

DavidJames said:There is no need for Cheney and Scalia to "engage in improper communication". They are on the same team.

DavidJames, if you mean that they have similar views, this seems correct and there is nothing wrong in that.

If you mean that they are part of a conspiracy to distort the rule of law for their own self interests, I don't reject this notion, but I don't accept it either.

It is absolutely clear that politicians are drivien by self interest, but I don't think they are always driven by self interest. I think that at times politicians rise above self interest and make decisions based on noble motivations.

I absolutely agree with the folks that have criticized the duck hunting trip just because of the appearance of impropriety. I am just asking what evidence the folks have that seem to be assuming there was actual improper communication. Is it just because they don't agree with these two guys or do they have actual evidence that these guys would likely act improperly in this case?

[Brown]

Originally posted by davefoc
I absolutely agree with the folks that have criticized the duck hunting trip just because of the appearance of impropriety. I am just asking what evidence the folks have that seem to be assuming there was actual improper communication. Is it just because they don't agree with these two guys or do they have actual evidence that these guys would likely act improperly in this case? Actually, I would be totally shocked if these guys actually discussed the case in question, or any other case pending before the Court. It's not impossible that they talked about a pending case, but it is extremely unlikely.

[Luke T.]

Even if Cheney and Scalia didn't talk about Cheney's case, I think it is a bad idea for them to pal around with each other. Just being pals with Cheney will have an impact on Scalia's reasoning ability when deciding a case that will affect his friend.

It's like a supervisor sleeping with a subordinate. Even if they never talk about work, the relationship will have an effect come evaluation time.

[Zero]

I don't think the point is that they discussed specifics of the case, although it is possible that they did. What is troubling is the brazen way they did this, as though they are royalty and not government officials. You would think there would be some sort of shame, instead of Scalia being made to look like he's happy and proud to be Cheney's whore.

[subgenius]

Originally posted by Luke T.
Even if Cheney and Scalia didn't talk about Cheney's case, I think it is a bad idea for them to pal around with each other. Just being pals with Cheney will have an impact on Scalia's reasoning ability when deciding a case that will affect his friend.

It's like a supervisor sleeping with a subordinate. Even if they never talk about work, the relationship will have an effect come evaluation time.
Very true and insightful. Couldn't have said it better. These things have an effect even when we're in denial about it, and maybe more the denial the more the effect. True about almost any professional relationship: doctor/patient, lawyer/client, it just clouds the judgement.
That's why, over and above the serious effect on the perception of equal justice, it is not reasonable to insist vehemently that there's absolutely no problem. And I don't see anyone here really taking that position.
Scalia though appears to and methinks he protesteth too much.
Extreme defensiveness usually denotes a weakness in the position defended.

[TillEulenspiegel]

What the hell do You mean by that?
That's BS.
I'm NOT defencive
You make speling misstakes!, so there!

[subgenius]

Surprise, there's no surprise:

WASHINGTON (AP) - A defiant Supreme Court Justice Antonin Scalia refused Thursday to remove himself from a case involving Vice President Dick Cheney, a close friend, dismissing questions about a possible conflict of interest.
.....

Scalia and Cheney are friends from their days working in the Ford administration, Scalia noted.

"I conveyed the invitation, with my own warm recommendation, in the spring of 2003 and received an acceptance," Scalia wrote.

When the time came for the January trip, Scalia and Cheney flew to Louisiana together on a government jet, accompanied by one of Scalia's sons and a son-in-law, Scalia wrote.

http://apnews.myway.com/article/20040318/D81CRTQ80.html

Wouldn't it be funny if he rules against Cheney. I'll eat my shorts.

I can't wait for my turn at getting flown to La. for a duck hunting trip on a government jet at taxpayer's expense. Can you? That's going to be so cool.

[Brown]

You can read Justice Scalia's decision here (http://wid.ap.org/documents/scotus/040318cheney.pdf). To his credit, Justice Scalia did not need to say as much as he did. Most justices, when they deny such a motion (or when they recuse themselves) do so with little fanfare.

Also, Scalia does have some pretty good reasons for deciding the way he did. His lament is very familiar to other men and women on the bench: being a judge affects your social life, but it is not fair for you to have no social life at all, just because you are a judge. And assuming that the facts are as he stated them, I would find his decision reasonable. (That is not to say that I agree with it.)

That said, parts of his memorandum almost gave a green light to cronyism, and I was left wondering what kind of circumstances short of flagrant declarations of prejudice would compel a recusal. And there was this, which made me cringe when I read it:Let me respond, at the outset, to Sierra Club's suggestion that I should "resolve any doubts in favor of recusal." ... That might be sound advice if I were sitting on a Court of Appeals. ... There, my place would be taken by another judge, and the case would proceed normally. On the Supreme Court, however, the consequence is different: The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case. ... Moreover, granting the motion is (insofar as the outcome of the particular case is concerned) effectively the same as casting a vote against the petitioner [Chaney]. The petitioner needs five votes to overturn the judgment below, and it makes no difference whether the needed fifth vote is missing because it has been cast for the other side, or because it has not been cast at all. (emphasis mine)Now, what Justice Scalia is trying to say is that recusals should not be made merely out of an abundance of caution, because the recusal could affect the vote of the justices and thus the outcome of the case, which is certainly a legitimate concern. But what is troubling in the above quote is that Scalia seems to be saying that, without his vote, Cheney stands a good chance of losing the case. Moreover, Scalia implies that his vote--the one that would not be cast--is going to go in Chaney's favor.

In other words, Scalia's implication is that recusal would be unfair to Chaney, because it could deprive Chaney of the fifth vote that he needs to win. Scalia is also suggesting that his vote will favor Chaney, even though Scalia has not yet heard the merits of the case!

This sounds suspiciously like Scalia's "reasoning" in his monstrous opinion on the stay order that led to the Supreme Court's awarding the election to Bush. Withholding a stay, said Scalia, was unfair to Bush, because it cast doubt on "his election." In other words, Scalia came right out and said that Bush was entitled to win, even though a recount could have shown that Bush had fewer Florida votes than Gore and even though Scalia had not yet heard the legal merits of Bush's case.

In winding up his decision, Scalia says something else that is really stunning. He says that whether his friendship with Chaney would predispose him to rule Chaney's way is irrelevant to the question at hand. Rather, he says, the question is whether he was "bought":The question, simply put, is whether someone who thought I could decide this case impartially despite my friendship with the Vice President would reasonably believe that I cannot decide it impartially because I went hunting with that friend and accepted an invitation to fly there with him on a Government plane. 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.The "someone who thought I could decide this case impartially despite my friendship with the Vice President" is a hypothetical person. Most people take it for granted that Scalia would decide Chaney's way, hunting trip or no hunting trip. Scalia seems to imply that if he were indeed a guaranteed vote for Chaney, that would not bear on his recusal. It would only be grounds for recusal if there were reason to believe that Scalia changed his vote to favor Chaney because of the hunting trip. Personally, I think Scalia is off base here. The issue is whether his impartiality can be reasonably questioned, not whether his vote was "bought."

And besides (to borrow an idea from Michael Crichton), the dangerous aspect is not whether a vote is "bought," but whether it is "influenced." Justice Scalia can say with complete credibility that he hasn't been "bought." But it's a bigger stretch for him to say that he hasn't been "influenced."

So the stage is set for a scenario that could do more serious damage to the Court's credibility: if the decision is 5-4 in favor of Chaney, then the damage to the Court's integrity could be very serious. For many, the inescapable conclusion (regardless of the legal validity of the Court's decision) will be that you can be legally in the right, but if your opponent is well-connected, you'll get screwed by the judiciary.

[WildCat]

I agree that Scalia should recuse himself from the Cheney case.

But what do you think about Ginsburg's conflicts? (http://www.chicagotribune.com/news/printedition/chi-0403180145mar18,1,1475109.story?coll=chi-printeditorial-hed) (Chicago Tribune editorial, free subscription required)

It turns out Ruth Bader Ginsburg has been similarly obtuse about her ethical obligations. A onetime lawyer for liberal causes like abortion rights, she has publicly affiliated herself with the NOW Legal Defense and Education Fund, which often takes part in cases before the Supreme Court. In January, she gave a talk to kick off the Justice Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law, which was co-sponsored by the organization and the New York City bar association.

<snip>

...It's bad enough that the NOW Legal Defense Fund is a liberal advocacy group often involved in federal litigation. What's worse is that Ginsburg's appearance came shortly after she voted to uphold the position taken by the group in a case before the court. If you were on the other side of that case and saw a photo on the fund's Web site (www.nowldef.org) publicizing its ties to Ginsburg, you could reasonably wonder if you had gotten a fair shake from her.

[Brown]

Originally posted by WildCat
But what do you think about Ginsburg's conflicts? (http://www.chicagotribune.com/news/printedition/chi-0403180145mar18,1,1475109.story?coll=chi-printeditorial-hed) I don't think that there's usually much cause to challenge any judge speaks before a lawyers' or citizens' group, merely because that group has a politcal bent or because might have an interest in a pending case. On the contary, I consider such presentations to be a part of a judge's civic duty (and many judges see it that way, too).

But a judge should avoid endorsing the goals of a particular group or expresing a view on the merits of a case. That guideline is applicable for any justice--Scalia, Ginsburg, or any of the others--who chooses to address a group.

In the duck hunt matter, the concern was more about cronyism, and not whether a legal issue had been improperly discussed or whether a judge had expressed a predisposition on a pending question or whether a judge was carrying out his civic duty. When it comes to cronyism, things get quite a bit stickier, because you have an appearance of impropriety but no "civic duty" in the balance.

For a kick, here is the Sierra Club's response (http://www.sierraclub.org/pressroom/releases/pr2004-03-18a.asp) to Scalia's decision.Justice Scalia misses the point. There's a problem when a Justice and a litigant meet secretly at a private hunting retreat -- regardless of what happens behind closed doors. It is the appearance of secrecy and impropriety that creates the problem, and it clearly has caused a public outcry here. If Justice Scalia and Mr. Cheney had only been so forthcoming with the facts at the outset, the public might have responded differently and this might have taken a different course.

[subgenius]

Good analysis Brown.
He protests too much. How often does this particularly egregious scenario come up?
They (S and C) are shifty eyed slimeballs.

[Chad Noles]

IMHO,the most damning arguement against Justice Scalia's trip with Cheney is provided by himself in his reply....

"On the Supreme Court, however, the consequence is different: The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case.

This is exactly why he shouldn't have gone on the trip in the first place!I find it irresponsible for Justice Scalia to engage in these activities knowing full well this case was pending.Duck hunting be damned.It's because this case has significant legal issues that the trip should not have taken place.There will be other duck seasons where there are no such pending cases.Take a year off.The action of Justice Scalia thumbs his nose at the Courts and the people it judges.:mad:

[TillEulenspiegel]

this blows , I spent a half an hour composing a retort and accidently hit the ESC key. GRRRRRRRRRRR

[Attrayant]

And now your "R" key is stuck!

Just FYI, any boneheaded thing you do with text (like hit the ESC key, or accidentally hilight all the text and then hit delete when you meant to hit copy) can be undone by hitting CTRL+Z. All your deleted text will magically reappear. :cool:

[Brown]

Sometimes I feel like a dope. I have thought that the Vice President spells his last name as "Chaney" (i.e., in the same way as another person about whom I've written, and who pronounces his name the same way).

The Vice President actually spells his name "Cheney."

In the event the Vice President happens to be reading this thread, let me offer my apologies.

[subgenius]

Why should the justice who put Dick Cheney in the White House stop helping him now?
...
The justice elucidates that if he and his family had not accepted a free ride on Air Force Two, there would have been "considerable inconvenience" to his other friends, who would have had to meet a commercial plane in New Orleans and arrange car and boat trips to the hunting camp.

What is integrity compared to inconvenience?

"I daresay that, at a hypothetical charity auction, much more would be bid for dinner for two at the White House than for a one-way flight to Louisiana on the vice president's jet," he writes wittily. "Justices accept the former with regularity." Now there's an argument that requires a first-rate mind: Everybody does it.
...

He reassures us that "Washington officials know the rules, and know that discussing with judges pending cases — their own or anyone else's — is forbidden." We must simply trust them, for they were bred to lead. Watching Mr. Cheney and Justice Scalia in action is all the proof one needs that Washington officials would never break the rules or engage in cronyism.

"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," the justice scoffs.

That's for sure.
...
http://www.nytimes.com/2004/03/21/opinion/21DOWD.html

[Chad Noles]

That phrase,echoing out of the past,that everyone should accept on face value:"I am not a crook."

[subgenius]

Go back further.
Methinks you doth protesteth too much.

[Chad Noles]

"I had no prior knowledge of the Duckgate affair.But,rest assured,I'll get to the bottom of this."

[subgenius]

We should probably have a whole seperate thread on this slimeball:

"Two reporters were ordered Wednesday to erase their tape recordings of a speech by U.S. Supreme Court Justice Antonin Scalia at a Mississippi high school.

Scalia has long barred television cameras from his speeches, but does not always forbid newspaper photographers and tape recorders. On Wednesday, he did not warn the audience at the high school that recording devices would be forbidden.

During the speech, a woman identifying herself as a deputy federal marshal demanded that a reporter for The Associated Press erase a tape recording of the justice's comments. She said the justice had asked that his appearance not be recorded.

The reporter initially resisted, but later showed the deputy how to erase the digital recording after the officer took the device from her hands. The exchange occurred in the front row of the auditorium while Scalia delivered his speech about the Constitution.

The deputy, who identified herself as Melanie Rube, also made a reporter for The Hattiesburg American erase her tape.
....

Last year, Scalia was criticized for refusing to allow television and radio coverage of an event in Ohio in which he received an award for supporting free speech. "

http://sfgate.com/cgi-bin/article.cgi?file=/news/archive/2004/04/07/national1952EDT0758.DTL&type=printable

[subgenius]

"....
It is striking that this dispute has made its way to the Supreme Court -- and so quickly. This happened because Cheney pushed it to the high Court by refusing to comply with lower court orders.

This case is being handled at the trial level by Judge Emmet Sullivan of the U.S. District Court for the District of Columbia -- a seasoned, highly respected jurist. Judge Sullivan was appointed by President Ronald Reagan to the Superior Court of the District of Columbia; by President George Bush to the D.C. Court of Appeals; and in 1994 by President Clinton to the federal bench. As this bipartisan support indicates, Judge Sullivan is no maverick.

There is no indication in the record that Judge Sullivan has been anything but fair in this case. Yet when he ruled against Cheney on the discovery issue, Cheney took the very unusual steps of appealing -- in the middle of an ongoing case -- first, to a three-judge panel of the U.S. Court of Appeals in the District of Columbia; then, when the panel said no, to the full Court of Appeals.

Rarely can any civil litigant appeal before a final ruling has been reached -- especially on a discovery question like this one. But when you seek to make new rules, as Cheney is doing, you don't play by the old rules.

The Court of Appeals divided along political lines. On the three-judge panel, Judges David Tatel, a Clinton appointee, and Harry Edwards, a Carter appointee, followed clear Circuit precedent -- the old rules -- to oppose Cheney's appeal. But Judge Raymond Randolph, appointed by G. H. W. Bush, dissented, urging that new rules be imposed. Upon review by the full circuit, Judge Randolph and two other conservative judges, Sentelle and Roberts, dissented -- again urging that Cheney benefit from new rules.

Finally, when the Court of Appeals said no, Cheney went to the U.S. Supreme Court. And, as Edward Lazarus has noted, while Cheney's petition was pending at the Supreme Court, "Scalia dined with Cheney (and Defense Secretary Donald Rumsfeld) at a posh spot out on Maryland's Eastern Shore."

What a difference a good meal may make. Later, the Court accepted review -- and Scalia refused to recuse himself. "

http://writ.news.findlaw.com/dean/20040326.html

[subgenius]

"What are the implications if Cheney does win this case, and Scalia's bright-line rule prevails? For a sense of them, it's useful to look to Judge Sullivan's well-reasoned opinion (and remember, Judge Sullivan has been nominated to judgeships by two Republicans -- as well as one Democrat).

Judge Sullivan wrote that "The implications ... are stunning," for Cheney's position is "untenable." He gave a few key examples of what accepting the bright line rule would mean:

Any action by Congress or the Judiciary that intrudes on the president's ability to recommend legislation to Congress or get advice from Cabinet members in any way would necessarily violate the Constitution. The Freedom of Information Act and other open government laws would therefore constitute an unconstitutional interference with Executive authority. Any action by a court or Congress that infringes on any other Article II power of the President, for example, the President's role as Commander in Chief of the armed forces and the national security concerns that derive from that role, would violate the Constitution. Any congressional or judicial ruling that infringes on the President's role in foreign affairs, would violate the Constitution.

The result, Judge Sullivan argued persuasively, would be to "eviscerate the understanding of checks and balances between the three branches of government on which our constitutional order depends." In other words, it would be to forever change the government, and the system our Founders envisioned.

This is a case to be watched -- and not only because the stakes are momentous. This case also has s political implications for an election year. If the Court decides against Cheney, what really went on in those Energy Group meetings could be exposed -- and it probably won't be pretty.

On the other hand, if the Court decides in Cheney's favor, John Kerry will have a powerful argument as to why it is time to stop stocking the federal judiciary with ideologues. It is moderates with bipartisan support, such as Judge Sullivan, who will come to right and reasonable rulings -- not mavericks like Justice Scalia."

http://writ.news.findlaw.com/dean/20040326.html

[TillEulenspiegel]

The application of critical analysis in the Bush administration is very easy to follow. If it walks like a duck and sounds like a duck the people in charge of duck recognition at the time access that it is indeed a whiff of fowl air ( sorry ) but nothing that appearers on the Iraq radar. The expert on hand of avian species was dismissed in his concerns Besides the FBI doesn't share their hunting ground with the CIA's. Apparently the duck in question was the equivalent of the rabbit in Monty Python's "Holy Grail".

To be very genuine the various intelligence services do ( or did not prior ti 7/11) engage in any sharing of information. I have made critique on other threads as to why but the bottom line is there was information available to the administration and because of ideological blinders , they chose not to pursue them.

That is fact. Wether or not it would have made a difference in RE 7/11 is a topic for debate, altho if I were a commander in charge of forces to protect the nation I would have acted against terrorist groups perceived to be a threat, much as Pres Clintion did.

[Brown]

Originally posted by Brown
If the eventual decision in the case should happen to be 5-4 favoring Cheney, then there will be a lot of people who will be exceptionally unhappy. The whole affair will reek of cronyism. If the vote is 6-3 or better in Cheney's favor, Scalia's refusal to remove himself from the case would probably be deemed harmless. (The chances that Scalia will write the opinion favoring his hunting buddy are pretty remote.)According to CNN and AP (http://www.cnn.com/2004/LAW/06/24/scotus.cheney.taskforce.ap/index.html), the Supreme Court has ruled in Cheney's favor by a 7-2 vote. Justice Kennedy wrote the majority opinion.

[Brown]

I should add that, in the time it took me to post my previous message, CNN updated its story to add more details. Apparently the issue of whether Cheney has to turn over records is still alive. I would need to read the entire opinion before commenting further.

(Although I have great respect for the media, I find that coverage of legal issues often misses some of the more important points, and therefore I do not rely on media reports as to what a court said. I prefer to "go directly to the source," and read for myself what the court said. The media is usually accurate, however, in reporting the result of a legal proceeding.)

[subgenius]

Your previous comment that anything better than a 6-3 would be "harmless" is of course true for this particular result, but not for the precedent it set in further recusal cases, or the public's perception of fundamental fairness.

[Brown]

Originally posted by subgenius
Your previous comment that anything better than a 6-3 would be "harmless" is of course true for this particular result, but not for the precedent it set in further recusal cases, or the public's perception of fundamental fairness. Yes, this is correct, and it highlights an important distinction. As I said, the non-recusal would be deemed harmless, as people would say, "So what if Scalia didn't recuse himself? The result would have been the same anyway!"

But there is a big difference between a result being perceived as being harmless and it actually being harmless.

I consider the case of Bush v. Gore to be the source of some of the Supreme Court's most monstrous--and dead wrong--decisions. But there are those who defend it with, "Well, so what? The recounts showed that Bush got more votes in Florida than Gore, so there's no harm done." Even if Bush did get more Florida votes than Gore (and I am far from convinced that he did), that does not take away from the harm that five justices did in rendering the decisions to stay the recount and to award the election to Bush.

[Brown]

Curious. I just went to the Supreme Court web site to read the opinion. The link, however, directed me to Justice Scalia's memorandum in which he explained his reasons for not recusing himself, rather than Justice Kennedy's opinion.

[subgenius]

Originally posted by Brown
Yes, this is correct, and it highlights an important distinction. As I said, the non-recusal would be deemed harmless, as people would say, "So what if Scalia didn't recuse himself? The result would have been the same anyway!"

But there is a big difference between a result being perceived as being harmless and it actually being harmless.

I consider the case of Bush v. Gore to be the source of some of the Supreme Court's most monstrous--and dead wrong--decisions. But there are those who defend it with, "Well, so what? The recounts showed that Bush got more votes in Florida than Gore, so there's no harm done." Even if Bush did get more Florida votes than Gore (and I am far from convinced that he did), that does not take away from the harm that five justices did in rendering the decisions to stay the recount and to award the election to Bush.
With respect to Bush v. Gore, you are aware that it was the only unsigned decision of the Supreme Court, and one that they also attempted to instruct should not be utilized as precedent?

V. Bugliosi should be read, although I haven't had much luck in persuading idiots to do so.

[Brown]

Originally posted by subgenius

With respect to Bush v. Gore, you are aware that it was the only unsigned decision of the Supreme Court, and one that they also attempted to instruct should not be utilized as precedent?

V. Bugliosi should be read, although I haven't had much luck in persuading idiots to do so. The opinion and stay order in Bush v. Gore are, officially anyway, anonymous (the opinion is "per curiam," which means "by the Court"). Bugliosi argues, with some merit, that the five-person majority's refusal to identify the author is an indication of known wrongdoing.

"Per curiam" opinions are not unusual. A "per curiam" opinion in a case of this magnitude, however, is very odd.

There were some individual opinons of various justices, however. Most notorious, in my view, was Justice Scalia's opinion that accompanied the stay order.

The Court also said that Bush v. Gore should not be cited as precedent, but already some courts have cited it. Two years ago, the 9th Circuit (I think) was being asked to stop the recall of the governor based upon this case. Bugliosi argues, again with some merit, that the five-person majority's assertion that the decision should not precedent is a further indication of known wrongdoing.

Edited to correct spelling.