http://www.latimes.com/news/nationworld/na...-home-headlines



My question to debate is:

Can Antonin Scalia be impartial in this case?

Should he step down from hearing this case?

I think Scalia should definitely recuse himself to avoid the appearance of impropriety. I say that especially since Cheney, in the eyes of the public, already looks suspect regarding the Halliburton Iraq sweetheart deal that was recently withdrawn under intense public pressure.

I doubt Scalia will recuse himself unless pressure on him builds up a great deal. He had two sons working for law firms representing Bush in Bush v. Gore, something that would usually be easy grounds for recusal (to be fair, alot of the the Supremes had links to Gore, Lieberman, Bush, and Cheney, esp. everyone appointed since Bush I). He did, however, bow to recusal demands regarding the Pledge, after a speech about the issue with the Knights of Columbus, who had lobbied Eisenhower to insert the "under God" phrase in the first place. It's a bit disturbing that Scalia's become so careless in recent years- he may be fairly predictable as a Justice, but it's polite to maintain the fiction that there are more than two votes up for grabs when something is argued before our highest court.

Is not that the truth? Scalia was going to side with Cheney regardless. Now if O'Connor or Kennedy had gone on that trip....

I don't see any conflict of interest here at all. This case isn't about Dick Cheney the person, but rather about the office of the Vice President and the Executive branch. I would expect Scalia to rule exactly the same way he would rule if it were the Clinton administration and Al Gore was the VP.

Most definitely Scalia should recuse himself from this case. How in the world can he appear to be impartial when he is ruling on a case that involves a person whom he has a personal friendship with (Cheney)?

Previous Justices were so concerned about appearing impartial that they stopped voting in elections. Others gently rebuffed dinner invitations to the White House. If Scalia is as intellectually brilliant as he is said to be he should be astute enough to know that his impartiality will be called into question in this case.

I agree with Aquilla. I respect Justice Scalia and believe he will be impartial in this case. Unlike some other justices who seem to guise their personal opinions in a ruling of law (Rehnquist and Brennan [who is gone] come to mind), Scalia has a set view of the law and doesn't diverge from it to suit his whim. A lot of people disagree with his opinions, but I've read many of them, and I feel the man says what he means and sticks by what he believes...all without using the law to suit his own whim.

I don't think it matters whether or not he can be impartial in this case. I still think he shouldn't take part in it. When it comes to a situation like this, any and every possible conflict of interest should be avoided. Even the appearance of one. Otherwise, we are just trying to pass judgment on what Scalia personally might or might not do. This administration has enough conflicts of interest and unprofessional relationships, we don't need more.

Should Scalia recuse himself? Absolutely. Will he? Highly unlikely.

The answer to the first question tells us why: Can Scalia be impartial in this case? Are you kidding?

First, I should mention that 95% of the time, Scalia appears to be a man of principle. His judicial philosophy and his approach to the role of the courts under the Constitution is remarkably congruous. He has long seemed to advocate judicial constraint when it comes to imposing personal values on Constitutional matters. While I may disagree with many of his interpretations, his opinions are generally well-reasoned and consistent. This is why, when his decisions come to White House politics, the inconsistency is so glaring. The Clinton v. Jones decision would be the first such instance of seeming contradiction in an otherwise distinguished career.

To assess Scalia's impartiality when it comes to this administration, though, we need only look to the last time he was making a decision regarding a case brought by his friends in the West Wing: Bush v. Gore. That was perhaps the least impartial decision the Supreme Court of the United States has ever entered - and Scalia was one of the principals behind it.

I hate to revisit that contentious case yet again, but I feel it does bear on this one. Though the Supreme Court Justices (or some of them) made the unprecedented decision that their decision should not set a precedent, that case did set a precedent - regarding their credibility.

Let's see how "impartial" Scalia was in 2000:

1. The vote count in Florida was proceeding smoothly and swiftly - and in accord with statutory Florida state law* - as of December 9, 2000, when the Bush campaign requested a stay. Under Supreme Court rules, a stay is only to be granted if there is a substantial showing that the applicant will suffer "irreparable harm" without such a stay. Antonin Scalia justified shutting down the state-sanctioned vote count by writing that Bush would suffer such harm because counting legitimate votes in Florida would be "casting a cloud upon what he claims to be the legitimacy of his election". [emphasis added] Hello - "his" election had not even been determined. Scalia was not only presuming the outcome of the election, but also that a first count of the votes - as defined by Florida state law - could "cloud" the legitimacy of that presumption. That was an impartial decision?

2. On November 22, 2000 - the first time the Bush campaign tried to prevent legitimately cast votes from being counted in Florida - the Supreme Court denied review of the objection that the vote count violated the equal protection clause of the Fourteenth Amendment. On November 22, they decided that this argument was so lacking in merit that they wouldn't even consider it. This came as no surprise. Justice Scalia and the other right-leaning justices on the bench had consistently resisted revising (or even contemplating) the equal protection clause and, as Scalia himself had previously argued, promoting "progressively higher degrees of equality". In the three weeks between his initial rejection of the equal protection argument and his decision on December 12, though, something happened which caused Scalia to reverse his opinion in all such previous cases and suddenly embrace and endorse the previously rejected argument. What happened? He ran out of sound, consistent arguments to decide the case in favor of Bush. That was a sign of impartiality?

3. Speaking of reversals of position, Scalia has also long been an advocate of federalism and ardent supporter of states' rights. His natural predilection in almost any other case would be to defer to the state court's decision - especially when it comes to state election law. Until, that is, December 2000. Scalia departed from what would be an almost reflexive impulse for one case and one case only and decided that - just this once - meddling with states' rights and re-writing state election law was okay. That was impartial?

4. "The Supreme Court of the United States does not sit to announce 'unique' dispositions." (Antonin Scalia, United States v. Virginia) --- "Our consideration is limited to the present circumstances." (Per curiam opinion in Bush v. Gore) I rest my case.

Again, I feel that Scalia is ordinarily consistent in his decisions and resists the influence of personal values in reaching decisions. When it comes to the Bush dynasty, though, I wouldn't trust him as far as I could throw the Washington Monument.

Apologies, by the way, for a lack of references in the above. Most of the links I have regarding this "cold case" have expired or are archived and available only by subscription. For more on all of the above, I would recommend either Vincent Bugliosi's The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President or Alan Dershowitz' Supreme Injustice: How the High Court Hijacked Election 2000.


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*According to §102.168(8) of the Florida Election Code, when the State Supreme Court finds that a challenge to a certified result has merit, it has the power to "provide any relief appropriate under the circumstances" - which is exactly what they were doing in ordering a manual count - authorized under §102.166(4c) of the Florida Election Code - of some 60,000 disputed (and uncounted) ballots.

I would be astonished if Scalia did not agree with that regardless of who was in the White House.

Maybe Scalia should recuse himself because of the appearance of impropriety, but IMO there is no actual impropriety here, only the appearance.

It would be tempting to present the other side of Bush v. Gore, since there is indeed another side that I think has the right of it, but I don't think this is the thread for it. I'll just limit myself to recommending a book arguing the other side: Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts by Richard A. Posner, Judge on the US 7th Circuit Court of Appeals and U of Chicage law professor.

Let me add that the 5-4 vote that decided the 2000 election was a party line vote. With the 5 court justices who most likely voted for Bush siding for Bush, and the 4 court justices who most likely voted for Gore siding with Gore. This is despite the fact that the 5 justices who sided with Bush would, under most circumstances, be more opposed to federal intervention in state affairs than the 4 who sided with Gore. It was the most blatant partisan decision in court history. Fortunately, proper recounts of the vote did show Bush the legitimate winner. The Supreme Court's actions actually harmed Bush by leaving the impression he was "selected, not elected". Scalia was definitely partisan here, so was every other justice.

Actually, you would be mistaken. He IS mentioned in the lawsuit. It is an appeal and the title of the suit is:



http://www.usdoj.gov/osg/briefs/2003/2pet/...75.pet.rep.html

No where does it read: "Office of the Vice Presidency vs........." It specifically lists him.

Even if it didn't list him, he's still a primary person in the matter. It concerns his documents and whether or not he is to turn them over. There is a clear conflict of interest in this matter. Since when do judges hobnob with either the plaintiff and defendant?? What judicial evidence suggests that it is not apropriate protocol?

That may be the case, Hugo, but the difference - and this bears on the current case as well - is that the four dissenters were being "partisan" and consistent with their previous decisions. The five favoring Bush were "partisan" and inconsistent with their previous decisions. When one reverses oneself for one case and one case only - and even makes especial note that the decision should not be used as a precedent (lest the shoe be on the other foot next time?) - that is a clear indication of bias. I'm surprised anyone could ever read impartiality into the decision in Bush v. Gore. Add to the equation that three of the five justices - including, again, Scalia - had demonstrable conflicts of interest in the case and did not recuse themselves indicates the level of chicanery at work in that decision. This one may be no different.

I can't fathom the NOT seeing at very least the appearance of a ocnflict of interest here. Three weeks after the Supreme Court agrees to see the case:

1) Cheney and Scalia are hunting together with seven other people.

2) They informed the local police to keep their presence a secret.

3) They used the land owned by Wallace Carline, an owner of a large energy services company.

They went as guests of an oilman when Cheney is under fire about his energy task force and the possibility of cronyism?? Irony
If they weren't aware of the supreme irony of this situation (bad pun) then they don't deserve to hold office.

Weeks ago I would have told someone they were crazy if they thought the Supreme Court could be bought. Now I think it is the case.

This entire debate begs the question: Why do our elected leaders get to conceal the goings-on in our government? This is NOT a national security issue and these meetings shouldn't be top secret. They are energy policy meetings.
This whole thing stinks and, frankly, is rather embarrassing to we Americans who believe our system is the ideal for the rest of the world to follow. Right now the "checks and balances" don't seem to be checking themselves and are way off balance.