Duck blind

In the Sierra Club case, the real issue of impropriety is Cheney's, not Scalia's.


Amanda Griscom
March 26, 2004 3:36AM (UTC)

According to Sierra Club lawyers, Vice President Dick Cheney has been exceeding the recommended dosage of political Viagra.

Last year, they sued him for metaphorically bedding the energy executives whom critics charge all but wrote the Bush administration's energy policy. Now they say he's been romancing Supreme Court Justice Antonin Scalia, who will be hearing Cheney's appeal of the Sierra Club case next month.

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The high court agreed in December to consider the appeal from Cheney, who had been ducking a federal judge's order to disclose documents about his infamous 2001 energy task force for more than a year. A month later, the veep was caught with Scalia at a chummy duck-hunting getaway in Louisiana. This development has been the butt of many a late-night-comedy joke, but the Sierra Club isn't laughing -- last month, the organization asked that Scalia recuse himself from the case involving his hunting buddy.

"The request is simple," said David Bookbinder, the Sierra Club's senior attorney on the Cheney case. "Scalia must redress the appearance of impropriety that has caused so much public outcry. He must restore public confidence in the integrity of our nation's highest court."

The Sierra Club could not have anticipated the juicy response it would receive from Scalia. His vehement, 21-page denial will find its place in the political pantheon somewhere between "I didn't inhale" and "I never had sexual relations with that woman." Seldom has a denial implied more guilt.

It wasn't the shared weekend of duck-hunting that Scalia denied -- in fact, his account of vacationing with the veep included details so elaborate and wistful that it read like a buttoned Edith Wharton romance: "It was not an intimate setting ... All meals were in common. Sleeping was in rooms of two or three, except for the vice president, who had his own quarters ... Nor was I alone with him at any time during the trip, except, perhaps, for instances so brief and unintentional that I would not recall them -- walking to or from a boat, perhaps, or going to or from dinner."

After reading the justice's memo, it was clearer than ever that the two are enjoying the duckiest of relations. Not only did Scalia admit to being pally with Cheney, he reveled in it, using the words "friend" and "friendship" no less than 21 times in the course of his rebuttal.

"Hardly refuting our accusations, Scalia's memo laid out in full detail precisely what we are trying to prove," said Bookbinder, "which is not bias itself, but the appearance of bias." Bookbinder cited a provision of federal law: "Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

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Scalia argues that his friendship with the accused is not grounds for disqualification. He cites a litany of historical cases in which presidents of yore canoodled with members of the high court: "Justice Stone tossed around a medicine ball with members of the Hoover administration ... Justice Vinson played poker with President Truman ... "

To which Bookbinder responded: It's fine if they're friends, but in none of these cases was a president cavorting with a justice at a time when a justice was weighing a case against a president. Plus, the federal statute on judicial recusal wasn't introduced until the 1970s, which makes the historical arguments moot.

Perhaps aware of the weakness of his historical precedents, Scalia then argues, "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." In other words, this is not about Cheney, it's about his task force, and Cheney's name on the case -- "Richard B. Cheney, Vice President of the United States, et al, v. United States District Court for the District of Columbia" -- is a mere formality.

This is one of the reasons that Tom Fitton, president of Judicial Watch, has declined to join the Sierra Club in its attack on Scalia -- despite the fact that his organization partnered with the environmental group in the original case against Cheney.

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"Judicial Watch trusts, as it must, that Justice Scalia will take whatever action he believes is appropriate under the circumstances," said Fitton, "and in this matter and in all matters before him, be faithful to his oath of office."

Fitton told Muckraker that he believed the Sierra Club's attack on Scalia had motivations beyond the legal. "I think it's part of the political context," he said. "Many on the left are still very angry over the 2000 election -- this may be a transference of that anger onto this issue."

Fitton also referenced case law that reaffirms his conviction that "the friendships members of the court share with government officials are numerous and to be expected."

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This line of argument strikes Muckraker as questionable. Because the 2000 election concluded under such politically charged circumstances and because the Supreme Court's impartiality was called into question, justifiably or not, one could argue that the onus is on Scalia to go above and beyond compliance with standard recusal guidelines. If nothing else, Scalia's stepping aside would have been a welcome statement of the court's neutrality at a time of public distrust.

But Fitton had another, more pointed objection to the duck-hunting hullabaloo: "What frustrates me most is that this whole Scalia controversy is a distraction from what ought to be a scandal -- Cheney refusing to turn over [the energy task force] documents," he said. "Cheney has asked to be made immune from legal scrutiny and from Congress -- this is preposterous, it's unconstitutional, and it must be stopped."

In the end, the Sierra Club agrees: "We understand that it's a sideshow, and we've decided not to push it any further," said Bookbinder. Regardless, legally there wasn't much more the Sierra Club could do once Scalia refused to recuse himself.

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As Fitton says, the real issue is Cheney's conduct, not Scalia's. And on that score Bookbinder's got bigger things to worry about: After long delays, the Supreme Court is scheduled to hear the Cheney case on April 27, just over a month from now.

Polling guru and GOP spinmeister Frank Luntz has uncovered a fact likely to rattle and bewilder some Republicans in Congress: Americans prefer clean water.

An emphatic memo sent out by the Luntz Research Companies in February spotlighted Americans' intense feelings on the subject:

"Young and old, Democrat AND Republican, the demand for clean water is universal. More importantly, the public is willing to pay for it. An overwhelming majority of Americans -- 91 percent -- agree that 'if, as a country, we are willing to invest BILLIONS of dollars annually in highways and airways, we certainly should be willing to make the necessary investments in our nation's waterways.'" (The italic and bold flourishes are Luntz Research's own.)

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Luntz got heaps of publicity last year when the press got ahold of an earlier memo in which he wrote, "The environment is probably the single issue on which Republicans in general -- and President Bush in particular -- are most vulnerable." The memo didn't advise GOP officials to implement new conservation policies or increase spending on the environment; instead, it tutored them on how to talk the talk, advising the use of buzzwords like "fair balance."

That approach didn't win Luntz many admirers in the "green green lima bean" set, as some Republicans like to call the environmental community. But his more recent memo suggests that Luntz may be considering the radical idea that actually addressing environmental challenges is an effective means of solving image problems. Who knows, maybe he's even getting in touch with his inner lima.

Luntz makes no bones about the import of the issue: "A majority of Americans ... believe that clean water is a RIGHT, not a privilege." The memo emphasizes voters' "intensity of feeling and the desire for action" on clean water. "I'll be blunt ... this issue is NOT going to go away. The environment is an area in which Americans expect progress to be made, and when they do not see progress being made, they get frustrated."

It's here that the memo wanders off the conservative reservation, suggesting tax-funded, centralized government action to address the water issue: a "trust fund" that would guarantee federal money to help keep America's water pure. It notes that 75 percent of poll respondents said they would be more likely to vote for a member of Congress if that person supported such a trust fund.

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Still, in classic Luntz style, this latest enviro-focused memo puts high emphasis on "Words That Work" -- i.e., phrases that GOP politicians can use in public statements to convince constituents that they really care about clean water.

Some politicians seem to be taking the poll results to heart.

"The irony is that it was a GOP defector -- Sen. Jim Jeffords [I-Vt.] -- who actually used the memo to influence policy," said Joan Mulhern, senior legislative counsel at Earthjustice, a nonprofit environmental law firm.

Jeffords referenced the document as he slammed the Bush administration's budget proposal for fiscal year 2005, which calls for slashing funding for clean water investments by nearly 40 percent -- from $1.35 billion to $850 million.

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"The administration's budget completely fails to recognize the staggering water resource needs of this nation," Jeffords said as he waved the Luntz memo around during a budget hearing earlier this month in the Senate Environment and Public Works Committee. "The recent poll by Republican pollster Frank Luntz that I am holding in my hand shows that 91 percent of Americans are concerned that our waterways will not be clean for our children and grandchildren."

It seems the Senate cares more about water -- or, perhaps, polls about water -- than the White House. Last Friday, the chamber voted on a budget resolution that not only rejected Bush's efforts to cut clean-water spending, but called for more than doubling the funds from $1.35 billion to $3.5 billion.

Better a lima bean than a lima has-been.

Muck it up

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We welcome rumors, whistleblowing, classified documents, or other useful tips on environmental policies, Beltway shenanigans and the people behind them. Please send 'em to muckraker@gristmagazine.com.

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Amanda Griscom

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