The Fruits of Fraternity
In November, 2003two months after the Bush Administration asked the U.S. Supreme Court to overrule a lower court's decision requiring the White House to identify members of an energy task forceVice President Dick Cheney and Justice Antonin Scalia were observed dining together at a restaurant on Maryland's Eastern Shore . The case involved a lawsuit charging that Cheney and his staff violated open-government rules by secretly meeting with lobbyists for the oil, gas, coal, and nuclear industries prior to formulating the administration's energy policy .
In January, 2004, following the decision of the Supreme Court to hear that case, Cheney and Scalia spent part of a week together, hunting ducks in Louisiana .
According to Charles Lewis, director of the Center for Public Integrity, the fraternization of judges with litigants who come before them in court "...gives the appearance of a tainted process where decisions are not made on the merits..." .
When questioned about his private involvement with Cheney, Scalia responded: "I do not think my impartiality could reasonably be questioned."  This is the same mantra routinely echoed by judges when confronted with the obvious truth of their improper conduct.
In the wake of public outcry over judicial conflict of interest, Chief Justice William H. Rehnquist named a high-level panel to investigate the federal court's handling of all judicial misconduct .
In the end, the Supreme Court avoided ruling on whether Cheney should make public the industry lobbyists who conferred with his energy-policy task force, and it remanded the case back to the appellate court. However, in his concurring opinion, Scalia made clear that he would have preferred to dismiss the case rather than requiring the lower court to reconsider it .
The behavior of judges is guided by codes of conduct to which they are expected to adhere. Thus, a judge "...shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." (Canon 2A) "A judge shall conduct all of the judge's extra-judicial activities so they do not cast reasonable doubt on the judge's capacity to act impartially as a judge." (Canon 4A1) "A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment." (Canon 2B) "Nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge." (Canon 2B) .
What the public should understand is that these canons are advisory only. No penalties are associated with their violation. They are widely ignored, and citizen complaints of judicial misconduct are routinely dismissed. This circumstance suggests that authority to decide questions of judicial impropriety should be removed from judges, who are usually self-serving, and placed in the hands of a truly autonomous body. It argues for creation of a law that would subject errant judges to the scrutiny of independent, citizen grand juries.
- Jonathan D. Salant, "Critics question propriety of Cheney, Scalia socializing," The Advocate, Baton Rouge, January 18, 2004.
- David G. Savage, "Duck hunt raises ethics questions; Cheney's energy case pending before Scalia," The Times-Picayune, New Orleans, January 17, 2004, p. A-10 (from the Los Angeles Times).
- J.E. Bourgoyne, "Cheney, Scalia duck into La. to hunt," The Times-Picayune, New Orleans, January 9, 2004, p. A-15.
- David G. Savage, "Trip with Cheney puts ethics spotlight on Scalia; Friends hunt ducks together, even as the justice is set to hear the vice president's case, Los Angeles Times, January 17, 2004, p. A-1.
- "Rehnquist appoints panel to probe handling of judicial misconduct," Los Angeles Times, May 26, 2004, p. A-23 (from wire services).
- David G. Savage, "Supreme Court backs up Cheney in records fight; Energy panel case sent back to appeals," The Times-Picayune, New Orleans, June 25, 2004, p. A-1 (from the Los Angeles Times).
- ABA Model Code of Judicial Conduct, 2000 Edition, American Bar Association, ABA Book Publishing, Chicago, 1999.