Jerry Brito

That dog don’t hunt

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The Los Angeles Timesreports today that Justice Scalia didn’t just go duck hunting with Vice President Cheney in January, but that Cheney also flew him out on Air Force Two. The more important revelation, I think, is that the hunting camp they stayed at is owned by a oil company executive. What the hell was Scalia thinking?

In case you don’t know, this matters because weeks before the trip the Supreme Court decided to hear a challenge to the secrecy around Cheney’s national energy commission. I’ve previously written about this commission and it’s report because I think its findings may not have only shaped energy policy, but foreign policy as well.

Scalia, although he infuriates me from time to time, is probably my favorite justice on the Court. For the most part he rejects creative interpretations of the Constitution, and for the most part he is consistent. His blunt, call-it-like-it-is style is also refreshing. But I think he may be taking his textualism a bit too far this time. 28 U.S.C. § 445(a) commands,

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

“I do not think my impartiality could reasonably be questioned,” he told the Times. I beg to differ. Going on vacation with a litigant before you, and at that litigant’s expense, and staying at an oil executive’s camp when the issue in question is related to energy, are pretty reasonable grounds to question impartiality whether impropriety exists or not. Scalia should do the honorable thing and recuse himself.

Feb 5, 2004 | Comments