I would like to be the first to welcome Justice Antonin Scalia to an election year (although maybe the New York Times already sent him a card). Scalia has taken a hammering from the liberal lobby and news media over the past several months -- a political maneuver comparable only to the attacks on President Bush. Granted, the fact that Scalia walks around with a painted target on his chest does not help his cause; as a well-established duck hunter, he should know better. Scalia is a conservative and a probable heir to Chief Justice William Rehnquist's throne, and "tis the political season.
But hasn't Scalia committed transgressions? While he has not exactly been as politically correct and careful as he should be, he isn't a politician anyway. The fact remains that Scalia has not broken any rules of the Court (since there aren't really any), and he most certainly writes the most interesting opinions. Liberals, although they deplore him, should respect his straight shooting, "Howard Dean" style of writing.
In his dissent in Lawrence v. Texas, Scalia writes, "Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda." Lawrence is clearly not a favorite of Scalia's.
Given Scalia's poignant and critical opinions that often strike at the heart of "political correctness," it is no surprise that he often takes the brunt of criticism from the liberal media. Still, what would the Court be without Scalia? Who would liberals poke fun of? What picture would conservatives put above their mantles? The Court needs a Scalia like baseball needs the New York Yankees. You need someone that people either worship or love to hate -- it keeps life interesting.
But before I totally digress, let us take a look at some of the accusations that have been thrown at Scalia and whether they truly deserve our scorn and concern. Although Scalia recently has been attacked more times than I can address, the most legally significant are two recent cases in which Scalia was asked to recuse himself. It is important to remember that there are absolutely no congressionally mandated guidelines requiring or suggesting when Supreme Court Justices should recuse -- the decision is solely up to the justices themselves.
The first case involved private meetings of Vice President Cheney's energy task force and was brought by the Sierra Club (in re: Richard Cheney). Three weeks after the Court agreed to hear the case, Scalia and Cheney went duck hunting with a mutual friend. After the Sierra Club filed a motion asking Scalia to recuse himself from the case due to the appearance of "impropriety," Scalia wrote a 21-page response, announcing why he would not recuse. At a speech at Amherst College, Scalia said, "It did not involve a lawsuit against Dick Cheney as a private individual. This was a government issue. It's acceptable practice to socialize with executive branch officials when there are not personal claims against them. That's all I'm going to say for now. Quack, quack." While the Sierra Club may not like Scalia's decision, it is important to note that there is absolutely no evidence to suggest that Scalia discussed the case with Cheney or proof of impropriety. As for the decision to recuse, only Scalia can take himself out of a case.
The second case was the subject of my last column, Elk Grove Independent School District v. Newdow, Scalia was asked to recuse himself after remarks he made at a Religious Freedom rally in which he commented directly on the case. Reportedly, Scalia said, "Removing references to God from public forums would be "contrary to our whole tradition.'" In this instance, the issue of impropriety seemed clear as Scalia went too far in addressing the case directly before hearing oral argument. In a wise decision, the Scalia recused himself from the case and did not participate in oral argument.
In closing, although these two instances can reasonably be criticized, it is clear that Scalia has not committed a single transgression that can be solidly held against him. Don't be too hard on him -- his opinions certainly keep Lexis-Nexis and Westlaw interesting.
Eric Wolkoff's column appears every two weeks.
