Justice must recuse from Cheney case

Most folks know that striving for neutrality, whether in media,
politics or law, is a lot like aiming for the Presidential Fitness
Award in junior high ““ especially when athletics are
secondary to an impressive science fiction collection.

Indeed, it’s a goal worthy of pursuit, but with results
always slightly off-kilter. Nonetheless, impartiality is not such
an unreasonable expectation, particularly for our high courts who
interpret the Constitution, the ultimate law of the land.

Why then, after a public display of chumminess, is Supreme Court
Justice Anthony Scalia refusing to recuse himself from the case
involving his duck-hunting pal, Vice President Dick Cheney?

The executive branch is currently appealing a lower-court ruling
that requires Cheney to release documents pertaining to the Energy
Task Force, of which he is the head. A conservative, Scalia is one
of nine judges who will hear the case, and interestingly enough,
one of the five judges responsible for putting Cheney in office in
Gore v. Bush (2000).

Early in 2003, Scalia invited Cheney to accompany him on a
duck-hunting trip to Louisiana. The two were among a group of 13,
and Scalia insists they did not spend significant time alone,
negating accusations of an intimate camaraderie. Nonetheless,
Scalia felt the need to justify his actions and clarify why he will
not recuse himself.

In a 21-page statement released last month, Scalia explains that
social interactions between members of executive and judicial
branches are common and do not present a conflict of interest.
Moreover, because the current case involves Cheney’s
professional position, not his personal character, their friendship
can have no bearing on an impending ruling.

Scalia also points out that recusal would undermine public trust
in his ability to perform as a Supreme Court justice. “The
people must have confidence in the integrity of the
Justices,” he writes, “and that cannot exist in a
system that assumes them to be corruptible by the slightest
friendship or favor.”

When can the people mistrust their gravely moral Supreme Court
justices? When they bequeath presidential power upon the loser of
the popular vote? Doubt fuels democracy, and to ask for our
unquestioning faith is not only arrogant, it’s
dictatorial.

Furthermore, I take issue with Scalia’s assumption that
professional and personal characteristics are mutually exclusive.
In so doing, he invokes a sort of Jekyll and Hyde dualism.

Finally, simply because chief justices and members of the
executive branch have palled around in the past doesn’t mean
any and all camaraderie is presently warranted. Certainly,
demanding total isolation between the groups is asinine, but
discretion must be exercised when mixing work with pleasure.

The same principle that forbids professors and students from
engaging in sexual relationships on account of ambivalent consent
also applies to justices who refrain from pursuing personal
relationships ““ no matter how much faith they have in their
own abilities to act impartially.

To be fair, Supreme Court Justice Ruth Bader Ginsberg is in a
similar predicament, under pressure from the right to recuse from
abortion-related cases since she has been involved in conferences
sponsored by abortion rights organizations. Certainly, this demands
further discussion. But I will suspend judgment until Ms. Ginsberg
and Jane Roe start hosting tupperware parties.

La Barre is a fifth-year women’s studies and
psychology student. She also writes for FEM magazine.