March 18, 2004

Spinning Duck-Hunting

Straight-forward reportage from the WaPo on Justice Scalia's refusal to recuse himself.

Compare it with the Dowdian hype the NYT throws at the story:

"Justice Antonin Scalia of the United States Supreme Court bluntly rejected demands today that he step aside in a case involving Vice President Dick Cheney, mocking criticism that a duck hunting trip that the two were on together in January indicated possible favoritism for his longtime friend.

"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," Justice Scalia wrote in a 21-page memorandum bristling with defiance and offering lessons in the ways of Washington

Mocking criticism? Bristling with defiance? Offering "lessons in the way of Washington" (whatever that means)?

Here's what Scalia really did.

He protected the Court from a veritable Pandora's Box of going forward recusal requests because, whether over a duck-hunting expedition or some Georgetown cocktail party, a Justice had had the misfortune to brush elbows with an individual named in a lawsuit before the Court.

Scalia further defended the Court from the loutish, 'gotcha' press banging down the gates of the Justice's social lives like buffoonish tabloid hacks (had Scalia recused himself, reporters would have had a whole new beat covering the social lives of the Justices: "Justice Ginsberg spotted at a Hillary Rodham Morningside Heights fete! Justice Breyer spotted dining with Gore daughters! Souter Dines Alone, Again!).

And what of that famous duck hunt Maureen Dowd loves to write about ad infinitum (the Times story, conveniently, excises much of the below detail carried in the WaPo piece, the better so you are left with Dowdian imagery of Nino and Dick in deep cuddle, rifles akimbo, swapping tales about preemption and/or why Roe is such bad law)?

"The hunting trip itself "was not an intimate setting," he said. The group hunted on a Monday afternoon and on Tuesday and Wednesday mornings. "It fished (in two boats) Tuesday afternoon. All meals were in common. Sleeping was in rooms of two or three, except for the Vice President, who had his own quarters."

Hunting, he said, "was in two or three man blinds. As it turned out, I never hunted in the same blind with the Vice President. Nor was I alone with him at any time during the trip, except, perhaps, for instances so brief and unintentional that I would not recall them. . . . Of course we said not a word about the present case."

Scalia said he stayed to hunt for two days after the vice president left on his own.

"My recusal is required if, by reason of the actions described above, my 'impartiality might reasonably be questioned,'" Scalia wrote.

"Why would that result follow from my being in a sizable group of persons, in a hunting camp with the Vice President, where I never hunted with him in the same blind or had other opportunity for private conversation?"

Did Scalia see any merit in the Sierra Club's recusal request?

"The only possibility, Scalia said, "is that it would suggest that I am a friend of his. But while friendship is a ground for recusal of a Justice where the personal fortune or the personal freedom of the friend is at issue, it has traditionally not been a ground for recusal where official action is at issue."

A critical distinction.

And this important, material point is not even mentioned in the NYT piece!

Think there's an anti-Scalia agenda at play here, just perhaps?

UPDATE: Daily Kos is busy collating statutes that purport to evidence Scalia's need to recuse himself.

The only problem is that the statutes and/or case law all require an evidencing of reasonable doubt re: the judge's impartiality.

And, per Scalia's de minimis duck hunting contacts with Cheney, I don't think such reasonable doubt can fairly be established.

Not by a long shot really.

MORE: Bill Keller, it appears, now got the Times to put up a more grown-up version of the story,

Posted by Gregory at March 18, 2004 10:14 PM
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