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Political Animal

Law Unto Themselves

By Brian Morton | Posted 11/16/2005

It’s probably a good thing for all concerned that Supreme Court justices don’t have their own armies. It is quite enough that what comes out of the court is considered the law of the land, or at least how that law is interpreted.

So justices are allowed the ultimate “mommy defense.” Their decisions are the highest form of “because I said so” in jurisprudence. Bush v. Gore? “Because I said so,” the “I” being each of the five right-leaning justices who installed George W. Bush as president in December 2000, no matter their tortured reasoning and the gag-inducing statement within the decision that it was not to be held as precedent in any other case.

Federal law says “any justice or judge shall disqualify himself in any proceeding in which his impartiality might be questioned,” but the delightful little Catch-22 in this is that the only person who can decide whether or not there is a conflict of interest when it comes to a justice is that justice him- or herself (and it’s looking like that “herself” part is shrinking from two-ninths to one-ninth).

In January 2004, Dick “Torture” Cheney, the only vice president we’ve got, went duck hunting with Supreme Court Justice Antonin Scalia less than a month after the court agreed to hear arguments in a case concerning the vice president’s secret energy task force. A lower court had ruled that Cheney must turn over documents that might have showed whether or not he met with sordid shysters like Enron CEO and Chairman Kenneth Lay.

Both Cheney and Scalia were separately ferried down to Louisiana in private jets as guests of an oil-services tycoon, according to an article in the Jan. 17, 2004, Los Angeles Times. New York University law professor Stephen Gillers, in that same article, argued that the trip smelled funny: “A judge may have a friendship with a lawyer, and that’s fine. But if the lawyer has a case before the judge, they don’t socialize until it’s over. That shows a proper respect for maintaining the public’s confidence in the integrity of the process.”

Did Scalia recuse himself from Cheney’s case after the hunting trip? Oh, hell no. “I do not think my impartiality could reasonably be questioned,” Scalia said. He might as well have said: “Because I said so. Now eat your peas.”

This kind of arrogance should give us pause when we scrutinize the actions recently brought to light of Bush’s latest appointee to the high court, Judge Samuel Alito Jr. Besides the fact that Alito was “bequested” between $100,000 and $250,000 worth of Exxon/Mobil stock by parties unknown in May 2004, Alito is showing a marked tendency not to recognize a conflict of interest when he sees it. And when he does, it is becoming apparent that Alito’s modus operandi is not to recuse himself, but to complain that he has done nothing wrong.

Last week The Boston Globe reported that there have been no fewer than three instances when Alito failed to recuse himself from cases he told a Senate committee he would stay away from if appointed to the federal bench. There’s the Vanguard case: Alito had more than $390,000 worth of Vanguard mutual funds yet complained that the plaintiff’s lawyer tried to get him to withdraw. Alito ruled in favor of Vanguard, and then wrote a letter to the chief circuit court judge after he finally withdrew, saying he didn’t think that owning shares of Vanguard would require him to disqualify himself.

John G.S. Flym, the attorney for Shantee Maharaj, who was fighting Vanguard to access the frozen assets of her late husband, told the Globe that Alito’s “lack of integrity is so flagrant” that the judge ought to be disqualified as a nominee to the high court.

In 1996, despite Alito’s promise to recuse himself from any cases involving his brokerage house, Smith Barney, he failed to step aside when the firm was involved in a case that came before him. Alito and two other judges overturned the district court’s dismissal of the case, helping out the defendant, HBO Film Management, and Smith Barney, the brokerage firm involved in the nascent deal.

Then there’s the case where Alito’s sister was with the law firm representing one of the parties that came before him in 1995—after Alito had said in those 1990 Senate committee hearings that he would recuse himself from cases involving his sister’s law firm. Of course, a White House spokesperson says Alito “does not have recollection of this case.”

In 1832, Supreme Court Justice John Marshall tried to stop President Andrew Jackson from evicting the Cherokee from their land in Georgia in Worcester v. Georgia. Jackson reportedly replied to the news, “John Marshall has made his decision, now let him enforce it,” and thus begat the tragic Trail of Tears.

A Justice Alito may not have an army to back up his decisions, just the power of “because I said so.” But that in itself is scary enough. If a man with no idea of a conflict of interest is left to be his own conscience when it comes to matters that involve him, can it be said that he has a conscience at all?

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Funny Business (6/9/2010)

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