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Eco-Justice Notes
The E-mail Commentary from Eco-Justice Ministries

Reasonably Questioned
distributed 3/5/04 - ©2004

This morning's news had an interesting story. All five justices on the Supreme Court in the state of South Dakota recused themselves in a case involving the former governor of the state.

Since the governor had appointed all of them to the bench, none of the Supreme Court justices thought that they could be fair -- or appear fair -- in considering such a case. So they all stepped aside, and five other judges have been appointed to hear the appeal.

If only that sort of integrity were present at the US Supreme Court.

In a high-profile appeal that will soon by heard by the court, justice Antonin Scalia has refused to acknowledge a glaring conflict of interest.

A few months ago, the Supreme Court agreed to hear an appeal from the Bush administration about meetings of Vice President Cheney's Energy Policy Task Force in 2001. Shortly after the court accepted the case, the VP invited Mr. Scalia to join him on a hunting trip. In January, they flew to Louisiana on Air Force Two, and spent two days together at a private hunting "camp."

The judge spends several days being lavishly entertained by the person at the center of a pending case, and then has the audacity to say to the Los Angeles Times, "I do not think my impartiality could reasonably be questioned."

That phrasing is significant. US law says that any justice or judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

Lots of reasonable people are raising questions. Actually, lots of reasonable people are making assertions about Mr. Scalia's corrupted impartiality. But, to date, he is still insisting that he will participate in this case.

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There are disturbing parallels between Justice Scalia's denial of a conflict of interest, and the case being heard.

Back in 2001, in the opening days of the Bush administration, Vice President Cheney was put in charge of a task force that drafted a comprehensive energy policy. Their work formed the foundation for the massive piece of energy legislation that repeatedly has been considered -- but not yet passed -- by the Congress.

The policy that Cheney drafted treats the energy industry very well, and does little to address the issues that were raised by environmental advocates. Leaders from the environmental community say that they had a very hard time being heard by the task force, while it appears that key figures from the energy industry -- close friends of oil men Bush and Cheney -- met often with the group, and got what they asked for.

"It appears" is still the necessary phrasing. The case that is going to the Supreme Court has to do with whether the Vice President has to release a list of the people who met with the task force. Three different courts have now ruled that the list must be made public, but Cheney is adamant in his claims of "executive privilege."

As I understand it, the Supreme Court is not being asked to determine if there was something sleazy about the way the energy task force did its business. Their question is considerably narrower: Is there an important legal reason why the US public should know who met with the task force, and who did not?

If the Energy Policy Task Force met often and at length with prominent folk from the business community, and only rarely and briefly with advocates for a different policy, is that a matter of public concern? Is it plausible that who you hang out with might shape the way you think?

And now we know that one of the judges who will be hearing this case does not seem to believe that hanging out one-on-one with the VP for several days will have any influence on how he considers this case.

Gee. I wonder how Mr. Scalia might be inclined to vote when he considers the matter of insider influence with regard to his friend, Mr. Cheney.

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Problems about self-interest and impartiality are not new. The Bible is well aware of the temptations to seek out our own advantage, and to take care of our friends.

For example, Jesus said, "When you give a luncheon or a dinner, do not invite your friends or your brothers or your relatives or rich neighbors, in case they may invite you in return, and you would be repaid. But when you give a banquet, invite the poor, the crippled, the lame, and the blind. And you will be blessed, because they cannot repay you, for you will be repaid at the resurrection of the righteous." (Luke 14:12-14)

The laws about judges disqualifying themselves are there because the temptations are so real. Mr. Scalia's refusal to step aside is a clear corruption of justice.

This sort of travesty must not be met with a shrug and a sigh. This cannot be seen as "business as usual." A public outcry still might force Justice Scalia to recuse himself.

In the coming days, how will you speak up for justice?


Peter Sawtell
Executive Director
Eco-Justice Ministries

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