That's Uncredible!

Antonin Scalia’s Recusal Refusal

by Al Uthman

"There are, I am sure, those who believe that my friendship with persons in the current administration might cause me to favor the Government in cases brought against it. That is not the issue here. Nor is the issue whether personal friendship with the Vice President might cause me to favor the Government in cases in which he is named. None of those suspicions regarding my impartiality…bears upon recusal here."

—Antonin Scalia


"I would like nothing better in a sense than to be able to go up and do this. But I have a responsibility to maintain what is a longstanding separation, constitutional separation, between the executive and the legislative branch."

—Condoleeza Rice


It’s hard times for the Cheney/Bush administration these days. His loyal cronies are scrambling in vain to discredit a growing number of far more credible and respected defectors. Most of these detractors have served quietly under one or more of our recent ex-presidents, none of whom would qualify as totally honest or incorruptible. So what is it about the new Presidency that has these guys foaming at the mouth? The inescapable conclusion is that Bush has lowered the bar of integrity and duty to his nation to such a degree that even the moral relativists who happily served under Nixon, Reagan and Bush senior cannot stomach the unplumbed depths of corruption, deceit and incompetence that Bush has come to represent to all but the most stupid and internally conflicted Americans.

Perhaps it’s just the fact that the new kids have none of the finesse of the old hucksters. For over three years now, Bush and Cheney have been financially sodomizing our nation without the decency to even give us a proper reach-around, let alone cuddle afterwards. No, with these guys it’s simple: sweet-talk us with some phony lines about how we need to be protected, cut straight to the wham-bam, and then they’re off again without even promising to call us later. It’s demeaning and downright distasteful, and we’re starting to feel the shame of a nation that’s been two-timed yet again, when we really should have learned our lesson by now.

The cover stories are thin to the point of transparency. Even our mainstream media, which spent the first half of Bush’s term in a state of abject adoration, can no longer pretend that things are hunky-dory in the White House.

One story that seems to have fallen by the wayside in the wake of the 9/11 hearings and Richard Clarke’s stunning allegations is Supreme Court Justice Antonin Scalia’s refusal to recuse himself from admitted "friend" Dick Cheney’s impending case.

If Scalia, a guy who cast one of the only five votes that counted in 2000, really isn’t utterly beholden to this administration, or at least its sponsors, then why not recuse himself when it’s utterly clear that at least an appearance of impropriety exists regarding his sitting on this case? Could it be that the same energy executives who took part in Dick’s "National Energy Policy Development Group," and whose very names Cheney is keeping secret, are also Scalia’s "friends?" After all, when the Vice President flew Scalia and his kid out to Louisiana on Air Force Two with him to enjoy a couple of days of duck hunting together, it was the judge’s oil-services tycoon friend, Wallace Carline (owner of Diamond Services Corp.), that invited them. If Scalia’s conscience is clear, why did he take the unusual step of issuing a twenty-one page memoranda regarding his refusal to recuse himself? It’s simple: Scalia is Cheney’s friend, and Cheney needs all the friends he has to establish the untouchably secret status he desires.

The case itself is highly un-kosher to begin with: Cheney is basically claiming that he is totally above the law. What started as a regular discovery matter has escalated to the brink of a sweeping reinterpretation of constitutional law.

At issue here, as with National Security Advisor Condoleezza Rice’s staunch refusal to testify before the 9/11 panel, is Congress’ ability to oversee the actions of Presidential administrations, and the Executive branch’s obligation to obey the laws that Congress passes. Specifically, the plaintiffs in this case, The Sierra Club and Judicial Watch, charge that Cheney’s Energy Task Force violated the Federal Advisory Committee Act. The Act requires that any advisory committee that involves anyone other than federal employees be open to the public, and there is little doubt that this was the case in the notoriously private sector-friendly White House.

Ironically, Cheney denies these charges while simultaneously refusing to provide the very documents that would supposedly exonerate him. He in fact denies the constitutionality of the discovery motions put forth by the plaintiffs. This is how Cheney got his case to the Supreme Court—one is tempted to speculate on why he would be so eager to get there—by simply refusing to comply with lower court rulings. That’s the curious fact that most of us don’t understand; this case is still in trial court. Cheney is not appealing a final verdict, but a simple ruling in favor of the plaintiffs on the discovery motion. It’s extremely unusual for anyone to appeal a ruling in the middle of an ongoing case, but Cheney has done so three times now; first to a three-judge DC appellate court panel, then to the whole appellate court when the panel refused to consider his appeal. While the full DC court allowed Cheney’s appeal, they too ruled in favor of the plaintiffs, prompting the ever-tenacious Dick to petition the Supreme Court.

Let’s pause for a moment. This brings me to another parallel with the current controversy regarding Condi Rice’s buttoned lip. While the phrase "Separation of Powers" sounds great and reminds us of American history class, what ties these arguments together is that all this secrecy can only signify that Bush and his cabinet are hiding the facts from us. There really is no other logical reason that people who are supposed to be busy running the country, or the world or whatever, would fight so hard for the right to conceal their activities from the public. There has to be some underlying guilt. Rice can lie all she wants on TV, but if she gets busted lying to congress under oath, she’s in deep shit. Likewise, the last thing Cheney wants is for everyone to find out that his policy-shaping committee was staffed by his former colleagues at Halliburton and Chevron, plus the Michelin Tire Man, Mr. Goodwrench and the Bin Laden boys. Why else would Scalia stay on the case in the face of universally scathing media criticism?

So, in order to avoid producing the ostensibly harmless Energy Task Force documents, Cheney sought review for the third time, now from the Supreme Court. While the Court was still deciding whether to grant an appeal, Scalia had dinner with Cheney and Defense Secretary Donald Rumsfeld at a swank Maryland restaurant. Then, on December 15 last year, the Court accepted Cheney’s case for review. Three months later Cheney and Scalia were sharing a plane on their way to shoot a few ducks on Diamond Services Corp’s tab. Further compounding the improbability that this is all a big coincidence, it turns out that Scalia is exactly the Justice for the job as far as Cheney’s concerned. Scalia has long been an advocate of greater executive power, arguing in one dissenting opinion that the Independent Counsel Law was unconstitutional. Scalia has allies on the court, too; it is likely that Chief Justice Rehnquist will side with him, as well as O’Connor, Kennedy, and of course Thomas. Should Scalia have recused himself, the likely 4-4 split would send the case back to the district court, where the initial discovery ruling would prevail.

Scalia casually disregards all of this: "Since I do not believe my impartiality can reasonably be questioned," he says in his memo, I do not think it would be proper for me to recuse." How sweet. Of course, the rest of the Court is somewhat to blame for not taking him to task, but this statement alone makes Scalia either the most disingenuous or the most oblivious man in the news since Bush himself. I think that any reasonable person can see cause to question Scalia’s impartiality regarding this case; you’d have to be a damn fool not to be at least a little uneasy about it. But what really makes me uneasy are the staggering implications of the seemingly inevitable reversal of the lower court’s decision.

The case is well-put by Judge Emmet Sullivan, the original District Court Judge who ordered Cheney to release the documents in question: should Cheney’s case prevail, according to Sullivan, "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…. Any action…that infringes on any other Article II power of the President…would violate the Constitution. Any congressional or judicial ruling that infringes on the President’s role in foreign affairs, would violate the Constitution." Such a ruling would "eviscerate the understanding of checks and balances between the three branches of government on which our constitutional order depends."

Just what the dictator ordered. No wonder Reagan appointed him. If he gets away with this one, Condoleezza can rest easy. And maybe he’ll get to be Chief Justice someday.

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