Sunday, March 21, 2004

Justice Scalia off target in Cheney case


U.S. Supreme Court Justice Antonin Scalia has ducked the central objection that's been whirling about him since his January duck-hunting trip with longtime friend Vice President Dick Cheney. In a 21-page decision Thursday, Scalia refused to recuse himself from the case in which the Sierra Club and Judicial Watch argue Cheney and his staff violated the Federal Advisory Committee Act when they met behind closed doors with lobbyists for the oil, gas, coal and nuclear industries. Too bad. Scalia missed a chance to reassure the American people.

In his "memorandum," he makes a spirited but disappointing defense of his Louisiana hunting trip, taken just three weeks after the Supreme Court agreed to hear the Cheney appeal. Missing from Scalia's arguments is much sense of the broader context: Americans want to know if U.S. energy policy was improperly shaped by energy industry lobbyists. Top energy executives, including Enron's former chairman Kenneth Lay, took part in the sessions. Were they de facto members of the national energy policy group? Were closed-door meetings legal, and is Cheney justified in withholding documents from those sessions? Such questions hang on the public's right to know.

Last month, in calling for Scalia to step aside on this case, we said he is a man of integrity and no doubt could rule impartially, but the charge of government by crony lies at the heart of this case. Scalia and Cheney were hunting camp guests of the owner of an oil services company. The Sierra Club, though not Judicial Watch, asked Scalia to recuse himself because this is not a "run-of-the-mill legal dispute about an administrative decision, and Cheney's reputation and integrity are on the line."

"I think not," Scalia writes, and insists it is a "run-of the-mill legal dispute."

We think not. The stakes are higher. The point isn't that Scalia could be bought with a hunting trip or a ride on Cheney's jet, or that Washington friendships should disqualify a justice from hearing a lawsuit, or that past justices were pals with presidents. The point is to reassure Americans that major government decisions are legitimately made, in public.

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