Trip With Cheney Puts Ethics Spotlight on Scalia

[IJ Reilly]

Friends hunt ducks together, even as the justice is set to hear the vice president's case.
By David G. Savage, Times Staff Writer

WASHINGTON — Vice President Dick Cheney and Supreme Court Justice Antonin Scalia spent part of last week duck hunting together at a private camp in southern Louisiana just three weeks after the court agreed to take up the vice president's appeal in lawsuits over his handling of the administration's energy task force.

While Scalia and Cheney are avid hunters and longtime friends, several experts in legal ethics questioned the timing of their trip and said it raised doubts about Scalia's ability to judge the case impartially.

But Scalia rejected that concern Friday, saying, "I do not think my impartiality could reasonably be questioned."

Federal law says "any justice or judge shall disqualify himself in any proceeding in which his impartiality might be questioned." For nearly three years, Cheney has been fighting demands that he reveal whether he met with energy industry officials, including Kenneth L. Lay when he was chairman of Enron, while he was formulating the president's energy policy.

A lower court ruled that Cheney must turn over documents detailing who met with his task force, but on Dec. 15, the high court announced it would hear his appeal. The justices are due to hear arguments in April in the case of "in re Richard B. Cheney."

In a written response to an inquiry from the Times about the hunting trip, Scalia said: "Cheney was indeed among the party of about nine who hunted from the camp. Social contacts with high-level executive officials (including cabinet officers) have never been thought improper for judges who may have before them cases in which those people are involved in their official capacity, as opposed to their personal capacity. For example, Supreme Court Justices are regularly invited to dine at the White House, whether or not a suit seeking to compel or prevent certain presidential action is pending."

Cheney does not face a personal penalty in the pending lawsuits. He could not be forced to pay damages, for example.

But the suits are not routine disputes about the powers of Cheney's office. Rather, the plaintiffs — the Sierra Club and Judicial Watch — contend that Cheney and his staff violated an open-government measure known as the Federal Advisory Committee Act by meeting behind closed doors with outside lobbyists for the oil, gas, coal and nuclear industries.

Stephen Gillers, a New York University law professor, said Scalia should have skipped going hunting with Cheney this year.

"A judge may have a friendship with a lawyer, and that's fine. But if the lawyer has a case before the judge, they don't socialize until it's over. That shows a proper respect for maintaining the public's confidence in the integrity of the process," said Gillers, who is an expert on legal ethics. "I think Justice Scalia should have been cognizant of that and avoided contact with the vice president until this was over. And this is not like a dinner with 25 or 30 people. This is a hunting trip where you are together for a few days."

The pair arrived Jan. 5 on Gulfstream jets and were guests of Wallace Carline, the owner of Diamond Services Corp., an oil services company in Amelia, La. The Associated Press in Morgan City, La., reported the trip on the day the vice president and his entourage departed.

"They asked us not to bring cameras out there," said Sheriff David Naquin, who serves St. Mary Parish, about 90 miles southwest of New Orleans, referring to the group's request for privacy. "The vice president and the justice were there for a relaxing trip, so we backed off."

While the local police were told about Cheney's trip shortly before his arrival, they were told to keep it a secret, Naquin said.

"The justice had been here several times before. I'm kind of sorry Cheney picked that week because it was a poor shooting week," Naquin said. "There weren't many ducks here, which is unusual for this time of the year."

Scalia agreed with the sheriff's assessment.

"The duck hunting was lousy. Our host said that in 35 years of duck hunting on this lease, he had never seen so few ducks," the justice said in his written response to the Times. "I did come back with a few ducks, which tasted swell."

In October, Justice Scalia announced he would not participate in the court's handling of a case involving the Pledge of Allegiance; that case is due to be heard in March. It stems from a U.S. 9th Circuit Court of Appeals ruling two years ago that declared unconstitutional the use of the words "under God" in the Pledge that is recited daily by millions of schoolchildren. These words were added to the Pledge by Congress in 1954, and they amount to an official government promotion of religion, the appeals court said.

Last year, Justice Scalia appeared to criticize that ruling in a speech at a Religious Freedom Day event in Fredericksburg, Va. "We could eliminate 'under God' from the Pledge of Allegiance," he said. "That could be democratically done."

But this is contrary to the wishes of most Americans, and it should not be done by judges or courts, he added.

The California school district that was on the losing end in the Pledge case appealed to the Supreme Court last summer.

Its lawyers urged the justices to restore the use of the words "under God."

While the appeal was pending, the Sacramento-area atheist who won the ruling in the 9th Circuit filed a motion suggesting Scalia withdraw from the case. He cited news account of Scalia's speech and the federal law mandating disqualifications whenever the judge's impartiality "might reasonably be questioned." When the court announced it would hear the case, Scalia also announced he would not participate.

Steven Lubet, who teaches judicial ethics at Northwestern University Law School, said he was not convinced that Scalia must withdraw from the Cheney case but said the trip raised a number of questions.

"It's not clear this requires disqualification, but there are not separate rules for longtime friends," he said. "This is not like a lawyer going on a fishing trip with a judge. A lawyer is one step removed. Cheney is the litigant in this case. The question is whether the justice's hunting partner did something wrong. And the whole purpose of these rules is to ensure the appearance of impartiality in regard to the litigants before the court."

The code of conduct for federal judges sets guidelines for members of the judiciary, but it does not set clear-cut rules. A judge should "act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary," it says. "A judge should not allow family, social or other relationships to influence judicial conduct or judgments," it says. Nor should a judge "permit others to convey the impression that they are in a special position to influence the judge."

In the lower courts, litigants may ask a judge to step aside. And if the request is refused, they may appeal to a higher court.

At the Supreme Court, the justices decide for themselves whether to step aside. On occasion, Justice Sandra Day O'Connor has withdrawn from business cases because she owns stock in one of the companies.

The justices have been reluctant to withdraw from a case simply because a former clerk is handling the dispute, or their son or daughter works at a law firm participating in the case. Last year, for example, Chief Justice William H. Rehnquist said he did not see a need to withdraw from a pending appeal in the Microsoft antitrust case simply because his son, a lawyer, was working on a related case.

http://www.latimes.com/news/nationworld/nation/la-na-ducks17jan17,1,7777211.story

[zimv20]

now i'm curious as to the total number of guns owned by bush, his cabinet, cheney and the supreme court.

i suppose federal law prohibits keeping such stats, eh?

[IJ Reilly]

Buried in the middle of this story:The pair arrived Jan. 5 on Gulfstream jets and were guests of Wallace Carline, the owner of Diamond Services Corp., an oil services company in Amelia, La. The Associated Press in Morgan City, La., reported the trip on the day the vice president and his entourage departed.
What are we to think about the Vice President and a Supreme Court justice being lavishly entertained by the owner of an oil services company?

[zimv20]

Originally posted by IJ Reilly

What are we to think about the Vice President and a Supreme Court justice being lavishly entertained by the owner of an oil services company?

it's delightful. ****ing delightful. it will certainly have absolutely no ****ing influence on scalia's already-made decision to allow his pal to keep the energy meeting notes private.

[Stelliform]

....

[IJ Reilly]

I was wondering what the Republican loyalists would have to say about this matter. Not a whole lot, I can see.

[pseudobrit]

Can you imagine what would have been donw to say, Bill Clinton had he taken a bunch of trial lawyers fishing with him?

[IJ Reilly]

Seems to me, Clinton took quite a bit of guff for just attending the annual Renaissance Weekend in South Carolina.

[wwworry]

any bets on how Scalia rules? No ???

I wonder if that's one of those places where they release a lot of prey so the hunter has a better chance. Cheney regulary goes to those.

[zimv20]

Originally posted by wwworry
I wonder if that's one of those places where they release a lot of prey so the hunter has a better chance. Cheney regulary goes to those.

when was cheney in iraq?

ZING!!!! :-)

[pseudobrit]

I wonder if, while hunting in the backwoods, they came across a disturbing hillbilly uttering creepy phrases like "You sure do got a pretty face?"

[zimv20]

Originally posted by pseudobrit
I wonder if, while hunting in the backwoods, they came across a disturbing hillbilly uttering creepy phrases like "You sure do got a pretty face?"

that was in canada! ZING TWO!!!

[IJ Reilly]

Originally posted by wwworry
any bets on how Scalia rules? No ???

Frankly, I think it was a foregone conclusion whether he goes duck hunting with Dick or not.

So where's the Republican contingent on these boards? Is this topic radioactive?

[Desertrat]

If they're already friends and hunting buddies from past years, any "influence" has already occurred. Years ago...I'm not sure I see anything more in a hunting trip than in whatever time-to-time visits they have in D.C.

To back up to the lawsuit, itself: I don't know enough about the specific circumstances of whatever meetings occurred that I can have an opinion. While public access is a Good Thing, the fact that folks from the energy companies sat in on discussions is also a Good Thing.

Example: When I worked on the Texas Coastal Zone Management Program--a state/federal land use management and environmental protection deal for the two layers of counties along the Gulf of Mexico, we had a "Citizens' Advisory Group". We met at least monthly.

We had people from the oil and petrochemical and aluminum companies. We had the then-head of Audubon, and the head of the Texas Environmental Coalition. Local elected officials. Wildlife biologists from National Marine Fisheries, USF&WS, and the Texas Parks & Wildlife Commission. Representatives from the farming and ranching world. And, navigation interests were represented.

So: When the issue was petrochemicals, we listened to the concerns of the folks from Exxon, e.g. Or Dow Chemical. Their needs and problems were considered as we inched toward policy decisions.

These meeting were all tape-recorded. The staff then reviewed the transcripts and worked toward a general consensus, without regard to any self-serving commentaries.

These meeting were not "locked door", but they were not really open to the public. About a year into the program, we began having public hearings at various locations along the coast, offering ideas about where we were headed, and open to any public input.

That background is why I'm dogmatic in my belief that any development of public policy that does not have input from the affected entities will turn out to be garbage.

'Rat

[zimv20]

from what i understand, the differences of the cheney meetings from yours are:

1. there were no representatives from environmental groups
2. it's a closely guarded secret who attended the meetings and what was discussed

[mactastic]

Originally posted by Desertrat
That background is why I'm dogmatic in my belief that any development of public policy that does not have input from the affected entities will turn out to be garbage.

So how do these energy meetings compare to your standard?

[Desertrat]

The consensus results as to policy should have been made public and some months allowed for public commentary. I don't know if legislation was called for, but that, too, should be done in the open with public sub-committee and/or committee hearings.

I'm not saying none of this was done. I may well have missed it. Or, it might have been "too boring" for much media coverage; I just don't know.

But I'm always in favor of open meetings (as much so as is feasible) and public input.

'Rat

[IJ Reilly]

Originally posted by Desertrat
If they're already friends and hunting buddies from past years, any "influence" has already occurred. Years ago...I'm not sure I see anything more in a hunting trip than in whatever time-to-time visits they have in D.C.

So, what you're saying is, even before the duck hunting junket, Cheney and Scalia were already too chummy for Scalia to hear a case with Cheney as the defendant while meeting the federal standard for impartiality?

[wwworry]

You didn't miss it. It was hidden.

[IJ Reilly]

The latest development in this story: Not only did Cheney and Scalia attend the same duck hunting junket only three weeks after the Supreme Court decided to hear Cheney's case, Scalia was Cheney's guest, and they travelled to Louisiana together on Air Force Two. It seems that their main defense will be that the duck hunting was lousy that weekend.

Scalia Was Cheney Hunt Trip Guest; Ethics Concern Grows

By David G. Savage and Richard A. Serrano, Times Staff Writers

PATTERSON, La. — Supreme Court Justice Antonin Scalia traveled as an official guest of Vice President Dick Cheney on a small government jet that served as Air Force Two when the pair came here last month to hunt ducks.

The revelation cast further doubts about whether Scalia can be an impartial judge in Cheney's upcoming case before the Supreme Court, legal ethics experts said. The hunting trip took place just weeks after the high court agreed to take up Cheney's bid to keep secret the details of his energy policy task force.

According to those who met them at the small airstrip here, the justice and the vice president flew from Washington on Jan. 5 and were accompanied by a second, backup Air Force jet that carried staff and security aides to the vice president.

Two military Black Hawk helicopters were brought in and hovered nearby as Cheney and Scalia were whisked away in a heavily guarded motorcade to a secluded, private hunting camp owned by an oil industry businessman.

The Times previously reported that the two men hunted ducks together while the case was pending, but it wasn't clear then that they had traveled together or that Scalia had accompanied Cheney on Air Force Two.

Several experts in legal ethics questioned whether Scalia should decide the case.

"In my view, this further ratchets it up. If the vice president is the source of generosity, it means Scalia is accepting a gift of some value from a litigant in a case before him," said New York University law professor Stephen Gillers.

"It is not just a trip with a litigant. It's a trip at the expense of the litigant. This is an easy case for stepping aside."

Aides to Cheney say the vice president, like the president, is entitled to travel to vacation spots on government jets and to take along guests at no cost.

"The vice president is on duty 24 hours, seven days a week," said Kevin Kellems, a spokesman for Cheney. "His security is important, and a certain number of people must accompany him."

Judges are bound by different rules, however. Federal law says that "any justice or judge shall disqualify himself in any proceeding in which his impartiality might be questioned."

When asked about the trip last month, Scalia confirmed that he had gone duck hunting with Cheney, but said he did not see a need to withdraw from the case.

"I do not think my impartiality could reasonably be questioned," he said in a written response to The Times. He said "social contacts" between justices and high-level government officials have not been seen as improper, even when those officials have cases in the courts that concern "their official capacity, as opposed to their personal capacity."

"I expect that all of the Justices were invited to the Vice President's annual Christmas Party. The invitation was not improper, nor was the attendance," Scalia wrote.

This week, the justice was asked whether he had traveled to south Louisiana as Cheney's guest or paid for the trip. He refused to comment.

[...]

Northwestern University law professor Steven Lubet said a vacation trip with the vice president is not the same as attending a Christmas party.

"This is certainly a level of hospitality that most litigants are not able to extend to Supreme Court justices," he said. "It also reinforces the perception this was an exceptional event, not a run-of-the-mill social event or a White House dinner."

[...]
http://www.latimes.com/news/nationworld/nation/la-na-ducks5feb05,1,3912983.story

[mactastic]

So what happened to Bush's pledge to avoid even the appearance of impropriety? This reeks of it.

[zimv20]

Originally posted by mactastic
So what happened to Bush's pledge to avoid even the appearance of impropriety? This reeks of it.

his words mean nothing. his actions tell all.

[Desertrat]

While it bothers me some that AF 2 was used for for a duck hunting trip, I gotta ask as to what are the options? Cheney wouldn't be allowed to travel except in a government vehicle, whether car, boat or airplane.

Next question: Does holding high elective office preclude vacations with activities of which one is fond?

IOW, where they went and how they got there is pretty much the only way Cheney could have gotten his duck hunt.

The only real issue is the effect of the friendship on Scalia's decision. I've already said my say about the Cheney/Scalia relationship...But anybody who believes you can "buy" a SCOTUS justice with a duck hunting trip is in serious need of a reality check.

I don't understand Cheney's reluctance to "open up" about the meetings. I just don't really believe they discussed bribe-type money or insider-trading in any meeting where records were kept!

As far as the Sierra Club's nose being out of joint about not being involved, my own experiences with them have left me underwhelmed by their views on a whole bunch of subjects. They're not as ignorant as PETA, but that's damning with faint praise...

'Rat

'Rat

[mactastic]

I wonder how much Cheney or Scalia ended up out of pocket for this little trip. My guess is almost nothing.

My boss tells me to not let any of the construction guys I manage buy me anything, just as a general rule. If we need to go to lunch to talk things over, I pay and get reimbursed. Even if one of them offers to make it 'his treat' the rules dictate that I decline. The appearance of impartiality is very important to my boss because he sometimes has to make decisions that may go against one or more of the workers or subs that we use and he doesn't want anyone complaining about favoritism or bribery or anything like that. I manage to live by those rules, can't a SCJ do the same?

[LethalWolfe]

Originally posted by IJ Reilly
So, what you're saying is, even before the duck hunting junket, Cheney and Scalia were already too chummy for Scalia to hear a case with Cheney as the defendant while meeting the federal standard for impartiality?


No, he said what you quoted back. ;)


Lethal

[IJ Reilly]

Originally posted by Desertrat
Next question: Does holding high elective office preclude vacations with activities of which one is fond?

High office hasn't got much to do with this. A judge should never pal around with someone who's got a case coming before them. Never. In any other situation, it would be cause for a mistrial, or the assignment of the case to another judge. Since that's impossible in this instance, at the very least, any preexisting friendship between Scalia and Cheney should have been put on hold until the case was heard and decided. But apparently their duck hunting trip was more important then any appearance of impropriety. The bad judgment (pardon the pun) exhibited by both of these people is mind-boggling.

[zimv20]

i'm going to agree w/ cheney and scalia that the trip won't have an outcome on scalia's decision on the case -- 'cuz he's already made up his mind.

[pseudobrit]

Originally posted by Desertrat
But anybody who believes you can "buy" a SCOTUS justice with a duck hunting trip is in serious need of a reality check.

I believe Scalia sold himself out a long time ago.

[jayb2000]

The vice president is the subject of a lawsuit involving the interests of energy companies and their involvement in writing the nation's energy policy.

The lawsuit moves to the Supreme Court.

The vice president and his close friend Justice Scalia go hunting together while the case about energy companies is pending before the Court.

The trip is bankrolled by an energy company.

Scalia and Cheney also dined together back in November after Bush administration lawyers had asked the Court to take the case.


Sounds fishy, no? But have no fear – here's how Scalia dealt with the issue: "I do not think my impartiality could reasonably be questioned."


How anyone can miss the impartiality, impropriety, and imbecility of this administration eludes me.

[IJ Reilly]

Originally posted by jayb2000
Sounds fishy, no?

Maybe not fishy, but certainly ducky. (If you happen to be Dick Cheney, anyway.)

[Desertrat]

Had Scalia recused himself at the time the case was accepted by SCOTUS, they'd have been okay to get drunk and go nekkid. Enjoy the Helldiver's Rodeo, for all I care. Eat gator tail and shoot small furry animals. No le hace.

I get more than just a little bit tired of the incredible numbers of elected/appointed folks at all levels of government who swear up and down they never, ever, could be tainted by cronyism. But that's a whole 'nother thread.

'Rat

[mactastic]

So 'Rat, does this mean you now think Scalia SHOULD recuse himself from Cheney's case?

[Sayhey]

Originally posted by Desertrat
Had Scalia recused himself at the time the case was accepted by SCOTUS, they'd have been okay to get drunk and go nekkid. Enjoy the Helldiver's Rodeo, for all I care. Eat gator tail and shoot small furry animals. No le hace.

I get more than just a little bit tired of the incredible numbers of elected/appointed folks at all levels of government who swear up and down they never, ever, could be tainted by cronyism. But that's a whole 'nother thread.

'Rat

'Rat,

I think I agree with you, but could you explain just what the heck is "the Helldiver's Rodeo"? Or should I not ask on a PG site?

[IJ Reilly]

Am I wrong, or does it look like Scalia is now thumbing his nose?

Scalia Says He'll Stay on Cheney Court Case

From Associated Press

WASHINGTON — Supreme Court Justice Antonin Scalia, a combative conservative known for his tough talk on and off the bench, isn't backing down in the face of criticism that he should stay out of a case involving his friend and hunting partner, Vice President Dick Cheney.

The two men went on a duck hunting trip last month, three weeks after the court agreed to hear a White House appeal in a case involving private meetings of the vice president's energy task force. Critics said the trip raised questions about Scalia's impartiality in the case.

Scalia told a gathering Tuesday night at Amherst College in Massachusetts that there was nothing improper about the trip and nothing about the case that made it a conflict for him.

"It did not involve a lawsuit against Dick Cheney as a private individual," Scalia said in response to a question from the audience of about 600 people. "This was a government issue. It's acceptable practice to socialize with executive branch officials when there are not personal claims against them. That's all I'm going to say for now. Quack, quack."

Cheney wants to keep private the details of White House sessions that produced the Bush energy policy. The administration is fighting a lawsuit brought by watchdog and environmental groups that contend industry executives may have helped shape policy.

Democrats in Congress and some legal ethicists have called on Scalia to stay out of the case. None has formally asked Scalia to recuse himself.

Supreme Court justices, unlike judges on other courts, decide for themselves whether they have conflicts with cases.


http://www.latimes.com/news/nationworld/nation/la-na-scalia12feb12,1,5360407.story

[mactastic]

Looks like there's nothing legally that can be done. The only way he will recuse himself is if the public outcry gets to be too much for the WH to handle the flak from. Even if someone made a formal request I doubt Scalia would step aside.

[Desertrat]

"HellDiver's Rodeo" is a book (probably at Amazon.com) by a very politically incorrect Libertarian Cajun redneck. He and his buddies go spear fishing and shoot small furry animals and get drunk and eat well and party and all that sort of thing.

The author occasionally has a column at http://www.LewRockwell.com

He and FredOnEverything have a lot in common.

:), 'Rat

[IJ Reilly]

Originally posted by mactastic
Looks like there's nothing legally that can be done. The only way he will recuse himself is if the public outcry gets to be too much for the WH to handle the flak from. Even if someone made a formal request I doubt Scalia would step aside.
Nope, nothing legally. But it's well worth remembering that GWB is very much on record as desiring to appoint more justices like Scalia.

[wwworry]

because Scalia appointed him?

[IJ Reilly]

Originally posted by wwworry
because Scalia appointed him?
You are such a cynic. Bush made that statement before the election. Hey, wait a minute... maybe that makes me a cynic.

[IJ Reilly]

The rare recusal motion raises the issue of impartiality because of the duo's hunting trip.

By David G. Savage, Times Staff Writer

WASHINGTON — Lawyers for the Sierra Club on Monday formally requested that Justice Antonin Scalia step aside from ruling in the forthcoming case involving Vice President Dick Cheney and his energy task force, saying the two men's recent duck-hunting trip had created the appearance that the justice was likely to favor the vice president in the dispute.

A recusal by Scalia was "necessary to redress an appearance of impropriety and to restore public confidence in the integrity of our nation's highest court," said David Bookbinder, the Sierra's Club legal director in Washington.

The motion to recuse was sent to the full court, not to Scalia alone. "Obviously, this is an issue for each of the nine justices to consider, since the integrity of the entire court is being called into question," Bookbinder said.

It is rare for lawyers to formally urge a justice to step aside because, by law and tradition, Supreme Court justices decide for themselves whether they have a conflict of interest. Many lawyers think such a request may backfire on the litigants.

[...]

The motion also relies on a quote from a high court opinion written by Scalia.

"What matters is not the reality of bias or prejudice but its appearance," he wrote in 1994.

By that standard, "Justice Scalia should be recused from this matter," the Sierra Club said.

http://www.latimes.com/news/nationworld/nation/la-na-ducks24feb24,1,4369323.story

[IJ Reilly]

Apparently, he makes a something of a habit of this.

Scalia Took Trip Set Up by Lawyer in Two Cases

Kansas visit in 2001 came within weeks of the Supreme Court hearing arguments.

By Richard A. Serrano and David G. Savage, Times Staff Writers

WASHINGTON — Supreme Court Justice Antonin Scalia was the guest of a Kansas law school two years ago and went pheasant hunting on a trip arranged by the school's dean, all within weeks of hearing two cases in which the dean was a lead attorney.

The cases involved issues of public policy important to Kansas officials. Accompanying Scalia on the November 2001 hunting trip were the Kansas governor and the recently retired state Senate president, who flew with Scalia to the hunting camp aboard a state plane.

Two weeks before the trip, University of Kansas School of Law Dean Stephen R. McAllister, along with the state's attorney general, had appeared before the Supreme Court to defend a Kansas law to confine sex offenders after they complete their prison terms.

Two weeks after the trip, the dean was before the high court to lead the state's defense of a Kansas prison program for treating sex criminals.

Scalia was hosted by McAllister, who also served as Kansas state solicitor, when he visited the law school to speak to students. At Scalia's request, McAllister arranged for the justice to go pheasant hunting after the law school event. And the dean enlisted then-Gov. Bill Graves and former state Senate President Dick Bond, both Republicans.

During the weekend of hunting in north-central Kansas, Graves and Bond said in separate interviews recently, they did not talk about the cases with Scalia, nor did they view the trip as a way to win his favor.

Scalia later sided with Kansas in both cases.

[...]
http://www.latimes.com/news/nationworld/nation/la-na-scalia27feb27,1,244010.story

[zimv20]

anyone know the procedure for recalling a SCJ?

[IJ Reilly]

Since they're appointed and not elected, I'd think recall isn't possible and as far as I can see, the Constitution doesn't provide for impeachment outside of the executive branch. Article III states that "judges, both of the Supreme and inferior courts, shall hold their offices during good behavior..." which raises the question whether a Supreme Court justice has ever been removed for "bad behavior," and how that might be accomplished under the Constitution.

I'm not suggesting that Scalia be subjected to such a process, but I wonder if it's even feasible under the Constitution to un-appoint a Supreme Court justice if they're caught taking bribes or some such office, or became senile.

[Desertrat]

While his past writings and comments have me in accord with Scalia's views of the Constitution, I'm damned sure not in accord with his behavior w/r/t what appears to be cronyism. If nothing else, the "Caesar's Wife Principle" applies. In a group as important as SCOTUS, there should not be even a hint of impropriety.

I'd be happy with a Bush appointee in line with Scalia's views, but wouldn't want anybody with his cronyism behavior.

I'm vague on the issue, but I think that in the case of senility, a judge can be removed on the basis of "incapacity to fulfill his duties" or some such reasoning. Dunno.

A very mild defense as to Scalia's possible decision: I've watched courtroom regulars such as prosecutors and defense attorneys fight like cats and dogs in the courtroom. I've also watched them go out and get drunk together, later. These same people often move onward and upward in life, some going to the Supreme Court and others becoming Vice Presidents. As I said earlier, any bias on a decision will derive from prior years of acquaintance, not from a hunting trip. However, keep in mind my comment about the impropriety of going on that trip.

A last comment from something that just bubbled up from the sewer of my mind: My father was head of the Materials and Tests Division of the Texas Highway Department. He and his people inspected the quality of construction. My father often went to hunting leases provided by contractors. There was one ironclad rule: Thou shalt not talk business during the hunt.

My father's people were known for their integrity. If a junior inspector on a job told the contractor, "It doesn't meet spec; tear it out," the contractor's whining to my father did no good whatsoever--and all those contractors knew it.

I guess I'm sorta proud that some of that rubbed off on me...

:), 'Rat

[numediaman]

Originally posted by Desertrat
While his past writings and comments have me in accord with Scalia's views of the Constitution . . . I'd be happy with a Bush appointee in line with Scalia's views . . .
'Rat

So the truth comes out: 'Rat is a Scalia fan. I find very little to recommend Scalia. While he is a vocal supporter of free speech, he has constantly supported positions I find offensive. He is strongly anti-gay, writing the dissent opinion in the case that over turned Texas' sodomy law; he has worked tirelessly to overturn Row vs. Wade; his was the only vote in dissent in the VMI case that allowed female candidates; wrote the opinion that prevents rape victims from sueing their attackers; and finally, Scalia's comment in oral argument in the Michigan cases that if Michigan wanted diversity in the law school it should "lower its standards" so "anyone" could get in, led inevitably to his angry dissent attacking affirmative action.

(In his dissent in the Texas case Scalia cites Americans’ reluctance to accept gays as business partners, school teachers or “boarders in their homes” as the basis for laws that deny them rights others enjoy. Gay sex, he argues, has never been constitutionally protected. --this paragraph was pulled from a web site )

Now, you may agree with these decision and dissents, but I thought it important to let everyone else know exactly where Scalia stands.

[IJ Reilly]

I also like how he's said that anyone who opposes the death penalty is unqualified to be a judge. So much to admire in the man, it's hard to know where to begin.

[Desertrat]

I said I agree with his view of the Constitution. That doesn't mean I like all his decisions. But I've seen many decisions that followed the Constitution rather than a judge's personal feelings...

As far as the death penalty, it's the law of the land that it can be assessed; some states do, some don't. If you want to be a judge in a death-penalty state, you better be able to deal with the law. Your personal distaste for some aspects of the law just flat-out ain't supposed to matter. If you can't stand the heat, stay out of the kitchen. Scalia's comment is accurate if it's limited to death-penalty states.

'Rat

[IJ Reilly]

I said I agree with his view of the Constitution. That doesn't mean I like all his decisions. But I've seen many decisions that followed the Constitution rather than a judge's personal feelings...

As far as the death penalty, it's the law of the land that it can be assessed; some states do, some don't. If you want to be a judge in a death-penalty state, you better be able to deal with the law. Your personal distaste for some aspects of the law just flat-out ain't supposed to matter. If you can't stand the heat, stay out of the kitchen. Scalia's comment is accurate if it's limited to death-penalty states.

'Rat

Even judges are allowed to have private opinions. Bush just recently appointed a judge to the federal bench who is very publicly and vocally opposed to the law of the land.

[Desertrat]

Even judges are allowed to have private opinions. Bush just recently appointed a judge to the federal bench who is very publicly and vocally opposed to the law of the land.

Well, lemme try from a different direction: A judge may have opinions which disagree with existing law. I would ask if his judicial history shows that he's voting his opinions, as opposed to following the law or the Constitution. If his history shows he creates new law by voting his opinion over the Constitution, I have a problem with that.

Stipulate I hate abortion. Stipulate it's evil, badnasty and anathema to me. But, SCOTUS gave us their decision in Roe v. Wade, and it's the law. Okay. If I'm a judge and a case comes before me having something to do with abortion, I either follow SCOTUS or recuse myself. I'm assuming, here, that I do indeed have personal integrity and honor.

My personal view about how a judge should act has to do with my view that Constitutionality judgements should include strong efforts to understand the Constitution's language in the context of the word usage at the time of the writing--1780s/1790s. Anyhow, a review of an appointee's past decisions should show how he perceives this sort of issue.

'Rat

[IJ Reilly]

No sale on your different direction. Different misdirection, more like.

Scalia may advertise himself as a "strict constructionist," but setting aside whether such a thing isn't fairly absurd given 200 years of constitutional interpretation by which the courts are supposed to abide, it's perfectly clear to me that Scalia is nothing of the kind. He is essentially an ideological, agenda-driven right wing activist judge.

Remember it was Scalia who opined that nobody that disagrees with him on the death penalty is qualified to even sit on the bench.

[wwworry]

My personal view about how a judge should act has to do with my view that Constitutionality judgements should include strong efforts to understand the Constitution's language in the context of the word usage at the time of the writing--1780s/1790s. Anyhow, a review of an appointee's past decisions should show how he perceives this sort of issue.

'Rat

But the thing is that Jefferson and Madison foresaw that the nature of our society changes over time and the government should change along with it. The beauty of our govt. is its adaptability. They built in a process of change and interpretation. Jefferson was a slave holder. Madison was a Virginian. Do you think if they were alive now and aware of the nature of todays society that they would call for a reinactment of slavery? No. Do you think they would want to limit the vote to only property holding white males? No.

The call for strict fundementalism is not the nature of our system. We are not an Amish nor Hasidim nor Wasabi Muslim government. A government that refuses to change and adapt withers and dies.

[IJ Reilly]

Even more importantly, our legal system relies on the principle of Stare Decisis (precedent). Judicial interpretations of the law and the Constitution are supposed to be built carefully upon one another. Judges who advertise themselves as "strict constructionists" are effectively rejecting one of the law's most durable propositions. That would not bother me so much if the "strict constructionists" were using that rule strictly, instead of as an excuse to overturn law and precedent that doesn't promote their social and political agenda. What I find especially annoying is when President Bush decries "activist judges" overruling the "will of the people" and then supports and appoints right wing activist judges.