The other day, I linked to Justice Scalia’s opinion explaining his refusal to recuse himself from a case brought by the Sierra Club and others against the Vice President, in his official capacity, notwithstanding that Scalia had gone duck hunting with the Vice President and others. I noted that my favorite part of the opinion was Scalia’s response to certain editorial writers who constituted the Sierra Club’s primary authority in favor of recusal, that party having been unable to locate any relevant legal precedent in its favor.
It’s too bad that this E.J. Dionne column hadn’t yet appeared when Scalia wrote his opinion, for Dionne makes the hack liberal editorialists of America seem like so many Learned Hands. Dionne starts his piece by alerting his readers that they ought not take his column seriously, inasmuch as his view is that “Scalia should stay out of any case involving the political interests of this administration.” Why? Because Scalia “played such a central role in putting Bush and Cheney in office through the abominable Bush v. Gore decision.” But wait. Under Dionne’s analysis, didn’t several sitting Justices play “a central role” in trying to keep Bush and Cheney out of office through their dissenting votes in that case? Shouldn’t these Justices (and for that matter, the rest of the Court — all of the Justices took sides) be disqualified from cases in which the administration has an interest? Of course, the dissenting Justices didn’t write an opinion that Dionne considers abominable. But what was abominable about Scalia’s? Dionne says it “put aside his own long-standing convictions on issues involving states’ rights and equal protection to find a way to put Bush and Cheney in office.” Of course, Dionne doesn’t point to any prior statements by Scalia that are inconsistent with his decision overturning the runaway Florida Supreme Court. He simply invokes the canard that because Scalia is a conservative, he must have acted hypocritcally in striking down a state court decision (not a state law) on equal protection grounds. But, again, the same charge can be leveled against the liberal judges who declined to overturn the state court decision on equal protection grounds. Under Dionne’s reasoning (if any) the liberals were just as hypocritically result-oriented and should not decide cases in which the administration has a political stake.
Dionne fares no better when he finally turns to the merits of Scalia’s decision on recusal. He begins by cleverly using Scalia’s own words about the duck hunting expedition to prove what Scalia has already stipulated — that he and Cheney are friends. Dionne imagines that this is the end of the inquiry, but of course it is only the beginning. As Scalia explained in detail, the law is reasonably clear that friendship with a government official sued in his official capacity is not, by itself, grounds for recusal. If it were, Justices would constantly be forced not to decide cases, since one ordinarily doesn’t become a Supreme Court Justice without having friends in high places. Dionne makes no attempt to show that the Sierra Club’s case against Cheney is the type of case in which the friendship warrants recusal. I wonder whether Dionne even read the portion of Scalia’s opinion in which he explains why it is not such a case.
Dionne concludes by asking whether Scalia “belong[s] on a court where he has to pretend to believe in deciding cases on the merits.” But, by calling Scalia a fierce ideologue earlier in the same paragraph, Dionne has already demonstrated that his real concern is precisely that Scalia does decide cases on his view of the merits, a conservative view. If this means, as Dionne claims, that “Scalia’s impartiality can’t even be imagined,” then neither can Ruth Bader Ginsburg’s or William Brennan’s. But, as even Dionne can grasp, having a strong ideological bent is not the same thing as being partial in any improper sense, unless of course the ideology happens to be conservatism.
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