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Sharing a duckblind vs. blind justice

In no other courtroom in the land - perhaps in the world - is it left to a judge to decide solely on his or her own whether the appearance of conflict requires the judge to step back from a case.

But then the United States Supreme Court is rather special, as we learned on Dec. 12, 2000, when five members handed the presidency to George W. Bush.

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For more than two years, Vice President Dick Cheney has been resisting demands that he release records of the energy task force that he headed. The Sierra Club and Judicial Watch want to know especially whether industry figures, like Ken Lay of Enron, helped to write a policy that favored oil and gas companies.

A lower court ordered Mr. Cheney to release the records. The administration appealed to the Supreme Court, which announced on Dec. 15 that it would hear the case. Three weeks later, on Jan. 5, Justice Antonin Scalia and several others flew down to southern Louisiana with the vice president on his official plane, Air Force Two, for a few days of duck hunting.

The hunting camp is owned by the head of a local oil services company. The local police were asked to keep their presence a secret. Speak of undisclosed locations!

But, after their departure, the trip became known to the Associated Press and the Los Angeles Times. Justice Scalia has, so far, refused to recuse himself - that is, disqualify himself from hearing the Cheney case. In a written statement he said, "I do not think my impartiality could reasonably be questioned." He compared the trip to being invited to dinner at the White House.

At an Amherst College gathering this week Scalia stuck to his guns, saying that this was "a government issue," not a lawsuit against Cheney as a private person.

Democratic Senators Patrick Leahy and Joseph Lieberman have written Chief Justice William Rehnquist asking whether Scalia can be a "fair and impartial adjudicator" in the Cheney case.

The Chief Justice replied that the court has no formal procedure for reviewing a justice's own decision, and he suggested the senators' complaint was "ill considered."

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So, unless the strong-minded Scalia changes his mind and recuses himself from a case involving his duck- hunting friend, you can expect in coming weeks to hear a lot of, "If it looks like a duck and quacks like a duck...."

Daniel Schorr is a senior news analyst at National Public Radio.


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