It Walks Like a Duck

The judges had finished their discussion, and the subject turned to an upcoming meeting.

“We could have Justice Scalia speak on ethics,” one judge volunteered to an outburst of laughter.

Another judge, chatting with friends at a social gathering, mused: “I know a defense lawyer who’d love to take me to a Lakers game. If it’s OK for Justice Scalia, maybe it’s OK for me too.”

Antonin Scalia has become an embarrassment and the butt of circulating jokes for many state and federal judges, men and women who put on black robes every morning and do their best to decide cases fairly and impartially.

The angry refusal by a justice on the nation’s highest court to step aside in the pending case involving his longtime friend and hunting buddy, Dick Cheney, could raise unwarranted questions about the ethics of every judge.

Once that happens, Lady Justice might as well pull off her blindfold and hock her scales to the highest bidder.

To recap, Scalia and the vice president spent a few days together last month shooting ducks. Cheney invited Scalia as his guest; the justice flew to Louisiana in Cheney’s government jet, and they spent time alone in the rushes. The jaunt came shortly after the court agreed to hear Cheney’s appeal of a lower court order that he turn over records of the closed task force meetings he held with executives of the oil, coal, gas and nuclear companies. Those 2001 meetings produced the president’s national energy policy, one heavily festooned with tax breaks and subsidies for these same industries.

Federal rules instruct a judge to disqualify himself “in any proceeding in which his impartiality might be questioned.” States have similar rules. In California, the Commission on Judicial Performance can sanction or remove a judge who violates these ethical canons. But there is no such check on the behavior of Supreme Court justices, no matter how blatant the conflict of interest.

Scalia insists that neither his long friendship with Cheney nor the freebie shooting trip will bias his decision in the pending secret-records case, and he dismisses any suggestion that he recuse himself. You don’t have to know field game to smell a rotten odor here.

Yet as criticism has mounted, Scalia has only become more insolent. Speaking at Amherst College in Massachusetts on Tuesday night, he again defended his participation in Cheney’s case. As a parting shot, Scalia announced: “That’s all I’m going to say for now. Quack. Quack.”

Some could say the same about conflict of interest. If it walks like a duck and talks like a duck, indeed ... Quack. Quack.