Wampum

Reasonably Questioned

Imagine that you walk into a courtroom for a bench trial in your suit against your landlord brought in an effort to force him to fix your leaking roof. You have brought your lease that makes the landlord responsible for repairing the roof. You have brought pictures showing a gaping hole in the roof. You have brought 4 witnesses who saw the rain drip from the ceiling into your computer and DVD player, frying both. You are very confident.

As you walk in, you look around for the landlord, and to your surprise, he is up at the bench talking and laughing with the judge. You approach to listen to the conversation and become aware that not only is your opposing party an old friend of the judge but they are talking about the judge’s new watch. It is a handsome and expensive looking watch.

Apparently, the watch was a gift to the judge from your landlord. It was given at a private party thrown by the local property owner’s association at which the judge was the guest of your landlord.

Seeing that you have arrived, the judge asks the clerk to call the case. After the case is called, you summon up all of your courage and announce that you do not think it is fair that the judge has been holding ex parte meetings (meetings with only one party to a case present) with the opposing party, that you do not think it is fair that the judge attended the party as the landlord's guest and you particularly do not feel that it is fair for the opposing party to be giving valuable gifts to the judge before he decides whether or not the landlord ought to have to fix your roof.

“Do not worry,” the judge says, “my impartiality can not reasonably be questioned because I say it can not. Call your first witness.” Are you still confident?

I bring up that hypothetical because Supreme Court Justice Antonin Scalia, sure of his own rectitude, does not think you have a thing to worry about.

The L.A. Times gives the background:

Two years ago, the Sierra Club and Judicial Watch sued (Vice President Dick) Cheney, seeking to learn whether the vice president and his staff had met behind closed doors with lobbyists and corporate officials from the oil, gas, coal and electric power industries.

A judge ordered Cheney to turn over documents detailing who met with his energy task force. Cheney appealed, and in September, Bush administration lawyers asked the Supreme Court to hear the case and reverse the judge's order.

So, Dick Cheney is a named defendant in a case pending before the Supreme Court where Justice Scalia sits.

Based on those facts alone, both Cheney and Scalia should have sufficient sense of decency not to socialize until after the case is decided. They, however, do not.

In January, Scalia, Cheney and others went on a duck hunting trip to Louisiana. Perhaps they discussed the case while hunting, perhaps not. The fact that we have no way to know is troubling.

Where did they hunt while down in Sportsman’s Paradise? They hunted on a private hunting reserve. Who owns the hunting reserve? The L.A. Times reports:

The hunting camp is on private land and in a secluded section of a bayou. According to several local hunters, it includes a large floating camp where guests stay overnight. During the day, hunters armed with shotguns go out in small boats to duck blinds to position themselves for shooting…

The camp is owned by Wallace Carline, the head of Diamond Services Corp., an oil services firm that is on 41 acres of waterfront property in Amelia, La. The company provides oil dredging, pile driving, salvage work, fabrication, pipe-rolling capability and general oilfield construction.

Carline, who founded the company 42 years ago, also contributes money to local Republicans running for office in Louisiana. He refused to comment on the visit by Cheney and Scalia.

So while a case about whether or not Dick Cheney must turn over documents that some think will show undue influence by energy companies, the defendant and one of the judges take a hunting trip together hosted by the head of an energy company. Wait, it gets worse.

How did Mr. Scalia get from Washington to the Louisiana paradise the energy baron graciously made available to Vice President Cheney? The L.A. Times reports:

Supreme Court Justice Antonin Scalia traveled as an official guest of Vice President Dick Cheney on a small government jet that served as Air Force Two when the pair came here last month to hunt ducks…

According to those who met them at the small airstrip here, the justice and the vice president flew from Washington on Jan. 5 and were accompanied by a second, backup Air Force jet that carried staff and security aides to the vice president.

Two military Black Hawk helicopters were brought in and hovered nearby as Cheney and Scalia were whisked away in a heavily guarded motorcade to a secluded, private hunting camp owned by an oil industry businessman.

Some legal ethics experts have concluded that providing that transportation constitutes a gift of a thing of value:

"In my view, this further ratchets it up. If the vice president is the source of generosity, it means Scalia is accepting a gift of some value from a litigant in a case before him," said New York University law professor Stephen Gillers.

"It is not just a trip with a litigant. It's a trip at the expense of the litigant. This is an easy case for stepping aside."

How large was the gift of value from the defendant to the judge? The L.A. Times reports:

Perry said the planes were piloted by Air Force crews, and he added that the Air Force paid $2,000 for fuel to return to Andrews Air Force Base in Maryland.

Two thousand dollars for fuel each way is $4,000 round trip. Scalia’s share for the round trip would be $2,000. That is for fuel alone.

Hal’s Journal has done a bit of looking into the issue. He notes that the plane in question was a Gulfstream. Hal then links to this page about chartering jets. Hal notes the cost of chartering jets:

They don't give a specific quote, but this page puts the GV in a bucket of other jets called "Heavy Jets", and says they go for $3800 to $8500 an hour.

As already mentioned, DC to Morgan City, LA, is a trip of just about 1000 miles, and the GV has a cruising speed of 560 mph.

So, a round trip DC to Morgan City and back would be about 2000 miles. At cruising speed that would be about four hours. Thus, the total cost would be between $15,200 and $34,000. The value of the gift to the judge by the litigant with a case before him would be half that or between $7,600 and $17,000. I have no idea if the fuel would be extra.

The Times makes clear that Mr. Scalia was the guest of Mr. Cheney. Mr. Cheney was, in turn the guest of energy executive Wallace Carline. Thus, the value of the use of the hunting preserve is also a gift from Mr. Cheney to Mr. Scalia.

It would not be unreasonable to guess that the litigant gave the judge a gift valued in the range of $10,000.

Now, is there any doubt that if Dick Cheney had handed a black bag with $10,000 cash to Scalia while the case was pending, it would be reasonable to question Mr. Scalia’s impartiality? Why is giving of free transportation and hunting privileges any different?

Well, it is different in one respect. The money for the gifts from Cheney to Scalia did not come out of Cheney’s pocket. They were paid for by an energy company official’s generosity as well as the generosity of the American taxpayer.

What has Mr. Scalia’s response been?

This week, the justice was asked whether he had traveled to south Louisiana as Cheney's guest or paid for the trip. He refused to comment...

When asked about the trip last month, Scalia confirmed that he had gone duck hunting with Cheney, but said he did not see a need to withdraw from the case.

"I do not think my impartiality could reasonably be questioned," he said in a written response to The Times.

Exactly what would cause Justice Scalia to think that his partiality could be reasonably questioned?

Posted by Dwight Meredith at February 5, 2004 01:51 PM | TrackBack