Anyone who reads this page knows I hope George W. Bush does not win the election this November. But if he does, I really hope he wins a clean victory and not one that winds up going to the Supreme Court.
As you may have heard, Justice Antonin Scalia today declined to recuse himself in the matter of the Sierra Club's suit against Dick Cheney. Even to a legal layman, his 21-page memorandum [Adobe Reader required] has to raise some eyebrows. He claims, for instance, that if Justices recuse themselves, there can too easily be 4-4 tie decisions. Okay, fine…but isn't a tie preferable to a 5-4 decision that will widely be perceived as dishonest or tainted? More to the point, when a Justice retires or dies, we always go through a long period where we have eight members on the High Court. If an even number of Justices is so undesirable, why has no one proposed whatever legislation would be necessary to hasten the confirmation process and get us back to nine? And of course, during those long periods of eight Justices, one recusing him or herself eliminates the possibility of a tie, so recusal doesn't always result in judicial gridlock.
The following passage also struck me as flailing about to find some way to argue his side…
…while friendship is a ground for recusal of a Justice where the personal fortune or the personal freedom of the friend is at issue, it has traditionally not been a ground for recusal where official action is at issue, no matter how important the official action was to the ambitions or the reputation of the Government officer.
Perhaps there are few (if any) precedents but I don't see the distinction here. If Dick Cheney loses this case and is forced to reveal that which he has fought to keep hidden, he could suffer enormous personal embarrassment. He could be sued or even lose his job. What the heck difference does it make to argue that — well, technically — it's his official action not his personal fortune. One could also make a pretty good case that Cheney's personal fortune has been enhanced in huge amounts by his official actions. Wait 'til later, when it's too late for Bush to drop him from the ticket and the Democrats begin unleashing the "war profiteering" accusations. At some point, we're going to hear Democrats saying things like, "Dick Cheney isn't really that interested in a second term. He wants to hurry back to Halliburton and collect his commission on the war."
In any case, it seems to me that recusal is not about the technicalities of a conflict of interest but about making sure that the court's decisions are above suspicion. Is there anyone today who feels, in light of Scalia's attitude, America is more likely to embrace the next 5-4 decision that favors the Bush administration with Scalia among the five?