Friday, March 19, 2004

In defense of Antonin Scalia: soon after Bush became president in 2000, he established an "energy task force" headed by Dick Cheney. The task force returned with recommendations for the nations energy policy, which Bush made into a bill, which in turn passed Congress and was signed into law. The bill contained, among other things, massive subsidies for energy companies. The Republicans' distaste of welfare does not extend to coporate welfare it seems.

When the Democrats took control of Congress following a defection, they demanded that the composition of Cheney's task force be made known. Who cares? you might ask. The bill is already law -- why does it matter who was influential in creating it?

Its widely known that energy executives were de facto members of this task force. The Democrats hope that someone from Enron met with Cheney regularly and that this can be used to embarass Bush. Clever political move.

The Democrats filed a suit demanding that Cheney turn over the records. He refused. The suit was dismissed. The Democrats appealled. They lost the appeal. Then, they appealled to the Supreme Court. And this is how we arrived at the latest twist in this drama: it turns out that before the appeal to the Supreme Court was filed, Justice Antonin Scalia went duck hunting with Cheney. The Democrats now demand that Scalia recuse himself.

They're wrong. To the extent that the hunting trip occurred before any appeal to the Supreme Court was filed, Scalia's behavior was not inappropriate. As for Scalia and Cheney being friends: is it really realistic to expect that Supreme Court justices recuse themselves whenever court cases touch on their friends? After all, the way you get a seat on the court is by having connections in Washington. Hundreds of suits against the goverment come before the court every year; these suits nominally name some federal official as a defendant. If justices were forced to recuse when the named officials were their friends, the court would hear most cases against the goverment half-empty.

And this is not a suit against Cheney personally. This is a suit against the executive branch which names Cheney only in his capacity as head of the taskforce and current holder of the documents in dispute.

Anyway, this theoretical rule about recusal in cases of friendship with a nominally named official is not currently enforced on the court. So it makes no sense to argue for applying it in this case.

Scalia spells out the details of this in a memorandum explaining his refusal to recuse.


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