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The high court'sduck blind

Scalia's hunting trip with Cheney looks bad. He should recuse himself

The Washington Post

The duck hunting wasn't even good: Lousy was the word Justice Antonin Scalia used to describe the pickings on his trip to Louisiana to shoot fowl with Vice President Dick Cheney and a few others. I did come back with a few ducks, which tasted swell, he said. But Scalia also came back with a big appearance problem, one that ' judging from his jesting comments on the matter ' he does not appreciate. And judging from a peremptory letter sent this week by Chief Justice William H. Rehnquist in response to senators' inquiries on the subject, the chief justice isn't taking it very seriously either.

Yes, Scalia and Cheney are old friends, and some old friends like to get together and shoot birds. But Cheney is also the defendant in one of the Supreme Court's hot-button cases this term, a suit seeking disclosure of information concerning his energy task force. Vacationing with the vice president under such circumstances, with both guests of an energy industry executive, represents a serious lapse in judgment, one that Scalia should now correct by recusing himself from further involvement in the case.

Scalia told the Los Angeles Times, which initially reported on the potential conflict, that he did not think my impartiality could reasonably be questioned. The justice explained that (s)ocial contacts with high-level executive branch 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.

This is right up to a point. Cabinet officers often are named as defendants in suits challenging actions by their agencies, though their personal behavior is not at issue. No one would argue that every time an executive branch official becomes a formal defendant, the judges hearing that case must cease all social contact with that person.

But this is not the classic case of a high official who is the nominal defendant in a suit that is, in practical terms, a suit against the government itself. Rather, it seeks the release of information that the plaintiffs believe will ' by showing undue influence on the part of energy interests in the formulation of administration policy ' prove embarrassing to Cheney. The secrecy of the energy task force, moreover, is a political issue, a target of Democratic presidential candidates. The vice president individually has a real stake in this case; it is consequently unseemly for it to be decided, in part, by a friend with whom he takes a vacation as the case is pending. Scalia only makes his appearance problem worse by digging in his heels and pretending it isn't there.