Ducking the Issue

March 21, 2004

Previously on BRR, I briefly mentioned the two key issues in the Scalia recusal memo: the proper standard for when a Justice should recuse and whether Cheney was acting in a personal or official capacity in the energy task force.

First, Mr. Poon discusses the proper standard for recusal: Missing the point pt. 1290910.4(a)

The issue is not whether a Justice is "capable of rendering an impartial decision," but rather whether his "impartiality might reasonably be questioned." Thus recusal does not turn on whether, in fact, it turns out that Scalia could or could not decide the case fairly; it turns on whether his impartiality might reasonably be questioned. Just to slam the point home, I want to reiterate that I believe both that Scalia can decide the case fairly and that he should have recused, because I believe that his impartiality might reasonably be questioned.

At De Novo, PG expands on why Justice Scalia's impartiality might reasonably be questioned: His Boy Cheney

The point at which I disagree with Scalia is that I do think Vice President Richard Cheney's rep is on the line to a much greater extent, and thus this is less of a bloodless X v. Y case than Scalia would like to think.

Cheney was closely associated with the energy industry while in the private sector. Critics claim that a task forceabout energy policy was only filled with energy industry insiders and environmentalists were excluded. Cheney is blocking the release of the list of advisors on his energy task force. A reasonable assumption of why the VP is blocking the release of that list of advisors is because it would indicate his willingness to listen to only the concerns of his cronies in the energy industry instead of a balance of opinions from energy producers, consumers and environmental advocates. If so, this indicates that Cheney was working primarily in a personal capacity to enable the government to benefit his buddies.

If Cheney was working in a personal capacity or a mixed personal and official capacity on his energy task force, rather than in solely an official capacity, the Cheney case can not be directly compared to previous recusal motions which questioned a Justice's impartiality concerning a friend who was working in a completely official capacity.

Maureen Dowd: Quid Pro Quack: "What is integrity compared to inconvenience?"

NY Times: A Case of Blind Justice Among a Bunch of Friends and Justice in a Bind

Posted by Andrew Raff at March 21, 2004 2:46 PM