Al Franken V. Antonin Scalia

al franken and justice antonin scalia CBS/96Rock

This column was written by John Nichols.
Supreme Court Justice Antonin Scalia is, supposedly, a very smart man. Indeed, he is frequently referred to as the intellectual giant on the current high court.

Yet, when Scalia was confronted by comedian and social commentator Al Franken with a basic question of legal ethics, it was the funny man, not the "serious" jurist, who proved to be the most knowledgeable.

The confrontation took place last week in New York City, where Scalia was the guest of Conversations on the Circle, a prestigious series of one-on-one interviews with Norman Pearlstine, the outgoing Time Inc. editor-in-chief.

After Pearlstine tossed a predictable set of softball questions to the justice, the session was opened to questions from the audience. Up popped Franken, the best-selling author and host of Air America's The Al Franken Show.

According to a scathing article that appeared in the Scalia-friendly New York Post, "Franken stood up in the back row and started talking about 'judicial demeanor' and asking 'hypothetically' about whether a judge should recuse himself if he had gone duck-hunting or flown in a private jet with a party in a case before his court."

Franken's reference was to Scalia's refusal to recuse himself from deliberations involving a lawsuit brought by public-interest groups that said Vice President Dick Cheney engaged in improper contacts with energy-industry executives and lobbyists while heading the Bush administration task force on energy policy. A federal court ordered Cheney to release documents related to his work with the task force, at which point the Bush administration appealed to the Supreme Court.

After the administration filed its appeal but before the court took the case, Cheney and Scalia were seen dining together in November, 2003, at an out-of-the-way restaurant on Maryland's eastern shore.

After the court agreed to take the case, Cheney and Scalia spent several days in January, 2004, hunting ducks at a remote camp in Louisiana.

Watchdog groups called for Scalia to recuse himself — Charles Lewis, director of the Center for Public Integrity, argued that fraternization involving a justice and a litigant with a case before the court "gives the appearance of a tainted process where decisions are not made on the merits" — but the justice responded by announcing that, "I do not think my impartiality could reasonably be questioned."

Several months later, Scalia and the other justices remanded the case back to the appellate court for further consideration — a decision that effectively made the issue go away during the 2004 presidential contest.

Scalia, a friend of Cheney's since the days when they worked together in the administration of former President Gerald Ford, had participated in a decision that was of tremendous benefit to the vice president in an election year.

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