Cold Duck

I am revisiting the Nino Scalia / Hunting With Dick Cheney pseudo scandal. As most phony scandal stories do, this one has taken on a life of its own. Pretty soon, it’s going to rival Teapot Dome – as all scandals analyzed by Josh Marshall do. Just ask him.
The facts: long time friends Dick Cheney and Antonin Scalia went hunting a month or so ago, flying out on Cheney’s Air Force II jet. Nobody made a big deal out of it until suddenly a couple legal ethicists crawled out of the stacks, and said, “well, considering there’s a case before the court involving the Vice President’s office… harrrumph, harrrumph, it raises serious questions.” Since then, we’ve seen the media echo chamber at work.
The eternally appealing Howard Bashman has been hot on the trail of this story, but he hasn’t really offered analysis of the story.
Political Science professor Matthew J. Franck takes up the story at National Review Online, arguing as I did a while ago that the hunting trip is de minimis, the 30+ year friendship is what would give rise to an appearance of impropriety — so the prevailing argument that the hunting trip raises questions is bogus. He also points out, as I did, that in recusing himself from the Newdow (pledge) case, Justice Scalia revealed himself as a man with a set of ethics, a trait which political enemies have now proven quick to exploit.
But as our President states, make no mistake. I nailed the analysis here, and I’m hoping that my cheap references to Bashman, and generous trackback pings, convince him to link up to me in order to publicize my stellar work product. Hey, I can’t help it. If I’m not getting paid for this, I at least want the glory…

1. This story was a non-story until it was taken up by the Boston Globe’s Charlie Savage. As Bashman notes, it was floating around on AP, just a throwaway story by the press pool. Savage found it, and did what he does. He is a man who is know to left/centrists as biased. Savage managed to find a couple ethicists willing to comment on L’affaire de Nino. They didn’t say that the Justice must recuse, only that the trip raised “serious questions, serious questions.” This is a particularly weak form of argument, relying on inuendo to do the work normally done by facts: “I’m not saying you shot the sheriff, but your presence here in the police station raises serious questions.”
2. The ethicists happen to be Steven Lubet, a masterful teacher of trial advocacy from Northwestern University Law, and Professor / Vice Dean Stephen Gillers, of New York University Law. You can ignore their backgrounds for a second – Lubet is a former leader of Northwestern’s highly radical Students for a Democratic Society, and Gillers led a charge to get the CIA banned from funding University research.
3. Gillers and Lubet also happen to be the house ethicists for Senator John Edwards, lending their names to the quest to smear conservative judicial nominees as unethical. The letters linked there just happened to arrive at Senator Edwards’ office, and just happened to wind up in the hands of People for the American Way, a left-liberal advocacy umbrella group. As noted in the previous entry, letters like that don’t just generate themselves, they are solicited – and if you don’t believe me, try writing a letter on a topic of import, and see if your Senator publishes it. Oh, and did I mention that Gillers is currently slamming Bush on Plamegate? How could I have missed that…
4. Gillers and Lubet, while posing as disinterested experts, are therefore quite likely to be interested parties, at least in the political sense. But why is their criticism so crabbed? Why limit it to the hunting party? Would a hunting party really make that much of a difference to two men who have been friends since the Nixon Administration? Wouldn’t that long friendship and professional relationship be a better target?
5. No, of course not. The reason Gillers and Lubet can’t make a broader argument is that it would disqualify a lot of judges, and a couple key justices. For example, Justice Ginsburg has a long term relationship with the National Organization for Women and other women’s advocacy groups. Many landmark cases under Title VII and Title IX featured Attorney Ginsburg, for the plaintiff. If Gillers and Lubet made the argument that a longstanding relationship of that nature was grounds for recusal, then they might be boxed in by their own words the next time an abortion case came up, for example.
6. Justice Scalia is also getting picked on here because he does have a sense of ethics, and he is a “by the book” type of judge. He recused himself from the Newdow case (the Pledge of Allegiance case) because groups protested his public comments on the compatibility of religion and the state. Sensing an opening, Gillers and Lubet floated this attack, perhaps at the behest of Charlie Savage.
7. Alternately, you can look to the substance of the complaint involving the Veep. Judicial Watch and the Sierra Club (the second a staunch ally of PFAW) are seeking official papers relating to the energy policy. The Veep’s office is asserting executive privilege, which makes sense; no executive branch official wants to release confidential deliberations, lest future advisors hold their tongues when a frank opinion is needed. Despite Judicial Watch’s claims to the contrary, this is a routine case about official privilege – and similar claims didn’t stop the left half of the Court from consorting with the Clintons during the Third Way salad days.
I submit that this is actually an attempt to tip the Court in favor of disclosure by eliminating a Justice who supports separation of powers, and that the Senate Dems – maybe even one of them who is running for President and in position to know Professors Gillers and Lubet – are hoping to find a smoking gun here with which to bludgeon the Veep.
8. The remainder of the argument that you are seeing around the country on op-ed pages is semi-informed, ill-examined kerfuffle. I don’t think the media echo chamber, other than Savage’s article, is orchestrated. I’m reasonably sure it’s just a slipshod job, dull reporters and editors repeating each others’ editorials, simply because they fit into preconceived notions about the law, legal ethics and Justice Scalia.
It’s kind of sad. There is a real question that ought to be asked about conflicts of interest in the incestuous political world of Washington. But it appears that nobody can be bothered to ask, because it’s too easy to suck down some pre-chewed swill from a couple pre-chewed lefty law professors. All we get in lieu of good questions is a bit of cold duck.



  1. Steve

    Nice analysis of a non-event. They’re always so difficult to cover. What irritates me is that no one reported the success (or lack thereof) of the duck hunt. Were the two old buds able to hit anything or did they spend most of their time in the blind imbibing anti-freeze? Seems to me that was the only story and none of the leftie journalists covered it. 🙂

  2. Al Maviva

    Well, I’m not entirely sure it’s a non-event. The 30 year relationship is a big deal. I’m willing to say Scalia should recuse, based on that; if professors Lubet and Gillers are willing to get Justice Ginsburg to recuse from abortion and sex harassment cases based on her 30 year relationship with women’s groups. Keeping on the fowl theme, what’s good for the goose, is good for the gander…

  3. Steve

    Glad I dropped by again altho posting at this hour on the Sacred Anniversary (of some kind) of St. Valentino may be unwise. Nice analysis of a non-event. I’m on Ginsburg’s side on that one. (Am pro-individual’s right to choose.) So I guess I was disappointed with the rightie jouranlists on that issue and am struggling mighty hard with your analogy anyway although the coincidence of the number “30” was interesting.
    Am not much into lawyering lingo so am going to pass on “recuse” except for the general observation that lawyers and journalists of both persuasions get more hung up on such than common folk like me. Yes, I know that can be frustrating to both camps.
    Heck, it’s only mid-Feb of an election year and we’ve got two Dems (the Screamer and the Philanderer II) and the Incumbent Republican (a pilot) already shot down in flames. What are we going to do for candidates? Sure, the lawyers may be in at the end to clean things up, but…
    There won’t be much of a dogfight if we continue at this rate. But I think I better bail out of here and give you a shot at an aviation homily of some sort….

  4. Charlie Savage

    Just for the record: I have never written an article about the Cheney/Scalia hunting trip.
    -Charlie Savage of the Boston Globe

  5. Al Maviva

    Right you are, Charlie. I mistakenly attributed that article to you; Dan Savage was the fellow who ground an axe on this issue for some weeks before the editorialists took up the cause. Thank you for the correction, hope you find humor in the sarcastic post apologizing.