‘Staggering’ Is the Word for Suggestions Barrett Recuse Herself on the Election

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

It looks like the Democrats are going to try to hector Judge Amy Coney Barrett into recusing herself from any cases on the election. “One of the things I want to ask her,” Senator Cory Booker told NBC in respect of the pending confirmation hearing, “is will she recuse herself because of, ah, in terms of any election issues that come before us because if she does not recuse herself, I fear that the court will be further delegitimized.”

Don’t wait up, we say. Senator Booker might want to take a look at a 2004 opinion by The Great Scalia. It sketches Justice Scalia’s logic in refusing to recuse himself in a case involving Vice President Dick Cheney. The Sierra Club had asked Scalia to recuse himself because he and the vice president had gone duck hunting together at Louisiana. And had allegedly flown there in a private jet.

Turns out that it wasn’t a private jet. It was a jet owned by their employer, the American government. That, though, was the least of the points that Scalia makes in a dense but hilarious — and also sage — opinion. In the course of its 21 pages Scalia draws to an astonishing conclusion. Which is that not only was there no basis for his recusal but that because there was no basis, he could not recuse, even if he wanted to. He had a duty.

Scalia began his opinion with the facts. He’d gone duck hunting for some years with a friend, Wallace Carline, who owned a duck hunting camp at Louisiana and a company servicing oil rigs in the Gulf. He’d never had business before the Supreme Court. Mr. Carline was an admirer of Mr. Cheney, and Justice Scalia offered to invite him to join them. Mr. Cheney accepted and invited Justice Scalia to fly with him on Air Force Two.

Despite reports, the Justice and the Vice President spent no one-on-one time during the entire trip. There were about 13 persons. They ate at a common table. The Vice President slept in his own room. They never shared a blind. They might have encountered one another alone glancingly walking to or from the dock. They never discussed any case. The Veep flew back earlier than the Justice, who took a commercial flight home.

Then Scalia dealt with the Sierra Club’s suggestion that he resolve any doubts in favor of recusal. That might be practical on an appeals court, where he could be easily replaced by another circuit judge. He couldn’t be replaced on the Supreme Court, though. So recusal could leave the court unable to resolve the case. So Scalia proceeded to the question of friendship with a person acting in an official capacity.

“Many Justices,” Scalia wrote, “have reached this Court precisely because they were friends of the incumbent President or other senior officials,” he wrote. President Johnson Quincy Adams included justices at his dinner parties. Justice Harlan occasionally went to the White House to visit President Hayes (they sang hymns). Justices Douglas and Chief Justice Vinson played poker with FDR and Harry Truman respectively.

Then Scalia dealt with the fact that Vice President Cheney was a named party in the matter before the Court. That, however, was not unusual. There were then 83 cases before the Court in which high level officials were named parties. The relief being sought was not for or against them personally but for or against the government. Scalia wasn’t being asked to rule on Mr. Cheney but on the power of the district court.

To the claim that Mr. Cheney’s reputation was on the line, Scalia wrote: “I think not.” In any event, Scalia warned that a “rule that required Members of this Court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling.” Then he proceeded to the Sierra Club’s claim, which was that Scalia had to bow to a clamor from the press. Yo ho ho and a bottle of rum, we say.

The Sierra Club claimed that “8 of the 10 newspapers with the largest circulation in the United States, 14 of the largest 20, and 20 of the 30 largest have called on Justice Scalia to step aside” while “not a single newspaper has argued against recusal.” Scalia summed up the Sierra Club’s argument as that “I must recuse because a significant portion of the press, which is deemed to be the American public, demands it.”

“Staggering” is the word with which he described the implications of that line of argument. The word is a bit polite for the suggestion that Judge Amy Coney Barrett ought to commit to recusing herself in election cases that haven’t even been filed. Then again, too, Judge Barrett doesn’t need The New York Sun to point out Scalia’s guidance on recusal. She clerked for him for two years and counts him as her mentor.

The New York Sun

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