Renewed Focus on Scalia Trip

It’s turkey season in Mississippi, and Supreme Court Justice Antonin Scalia was tramping through the countryside here this month in pursuit of the big birds.

His hunting partners, as usual, included Charles W. Pickering Sr., the federal judge who President Bush recently elevated to the U.S. court of appeals; and his son, Rep. Charles W. “Chip” Pickering, a four-term Republican member of Congress. For turkey hunters, this country is unrivaled.

“Mississippi is a great place to hunt and we have an abundance of turkeys,” the younger Pickering said. “My father and Justice Scalia are good friends and colleagues.”

Scalia typically combines his hunting trips to Mississippi with speeches to local schools. It was one of those speaking appearances that landed Scalia in the news earlier this month. His aversion to having his public remarks tape-recorded led a federal marshal to seize recordings from two reporters invited to cover his speech at a Christian school here. The justice later apologized.

But that was not the first time Scalia ruffled feathers here.

Two years ago, as the justice who oversees legal appeals from the deep South, Scalia played a key role in a messy congressional redistricting fight that resulted in the younger Pickering keeping his seat in Congress.

In 2002, Mississippi was forced to merge Pickering’s district with one held by a Democratic congressman. Just days before the deadline for resolving the matter, Scalia rejected an appeal from Democrats and cleared the way for a Republican-friendly plan to take effect.

The redistricting case marked at least the third time in three years that Scalia had participated in Supreme Court decisions involving friends he hunted with. Some argue that the practice raises questions about the appearance of impartiality at the nation’s highest court.

At the time, the redistricting battle drew little attention outside of Mississippi. Local papers and the Washington Post reported the Democrats’ outrage at what they considered political manipulation and pointed out the close relationship between Scalia and the Pickerings. And a closer look now at Scalia’s role shows that he distanced himself from one of his own states’ rights rulings in siding with Rep. Pickering.

In 1993, Scalia wrote a strong opinion for the Supreme Court in a Minnesota case, saying that state lawmakers and state judges, not federal authorities, had the primary duty to redraw their electoral districts. In the Mississippi case, however, Scalia upheld a move by federal judges to block a state court’s plan that was more favorable to Pickering’s Democratic opponent.

His legal flip came with an explanation suited to Mississippi -- but one carrying a touch of irony. Because of the state’s history of racism, its state officials cannot make changes in their electoral districts without advance approval from the Justice Department under the terms of the Voting Rights Act of 1965. And when the Bush administration refused to approve a Mississippi state judge’s plan that was favored by black Democrats, the high court cleared the way for federal judges to adopt a plan that was favorable to the Republicans.

Scalia’s role in a partisan struggle that determined the political fate of a hunting partner created an impression of partiality and Republican coziness, according to various observers.

“Lo and behold, they came up with a plan that ensured young Pickering’s victory. It looked like home cooking, if you’re of a skeptical mind,” said Joseph Parker, a political scientist at the University of Southern Mississippi.

Some think Scalia should have steered clear of the redistricting dispute.

“Small world, isn’t it?” the Clarion-Ledger, the newspaper that serves the state capital in Jackson, editorialized at the time. “Even a gesture toward impartiality” would suggest a justice should not rule on matters involving his “hunting buddies.”

Ronnie Shows, the Democratic representative who saw an end to his 27-year political career, says: “I got the shaft all around. We thought hopefully he would recuse himself on his own, so we didn’t ask him to. Evidently we took the wrong route.”

But the Democrats’ complaints also may be exaggerated, since it is not clear whether Scalia made a difference in the final outcome. His decision in the redistricting case was backed by the full court in a ruling issued months later. The justices all agreed that the state’s failure to win the Justice Department’s approval for its new Congressional districts cleared the way for federal judges to step in.

Rep. Pickering also disputed that Scalia should have stepped aside. “There was no conflict of interest here,” he said this month. “A social relationship does not constitute a conflict, and that’s clear in the judicial ethics.”

He added, “Hunting in the South is what a cocktail party is in Washington.”

Scalia rarely misses turkey season in Mississippi, according to his financial disclosure records, which show that local schools usually help pay his way in return for his speeches.

His relationship with the Pickerings is also long-lasting. In 1986, when Scalia was sworn in as a justice, the elder Pickering -- then a private lawyer -- was one of the few nonfamily members invited to attend.

And in 1997, when the younger Pickering became a member of Congress, Scalia officiated at a special ceremony held at the Supreme Court as Judge Pickering swore his son into office.

In January, the senior Pickering made headlines when Bush named him to the 5th U.S. Circuit Court of Appeals. Bush took the unusual step of bypassing Congress on Pickering’s behalf, saying the nomination was being unfairly blocked by Senate Democrats.

Scalia’s friendship with the Pickerings echoes his friendship with Vice President Dick Cheney. In January 2003, Scalia flew aboard Air Force Two with Cheney to hunt ducks in south Louisiana. Three weeks earlier, the Supreme Court had agreed to take up Cheney’s appeal to maintain the secrecy of his energy policy task force.

Scalia has refused to recuse himself from the Cheney case, which will be argued before the Supreme Court this week. In an opinion last month, he said that socializing with fellow hunters should not be automatic grounds for disqualifying a judge from a pending case. “Friendship is no basis for recusal” when a justice is called upon to decide a case involving a public official acting in his “official capacity,” Scalia wrote, noting that Cheney was being sued as the vice president, not personally.

By contrast, the Mississippi case directly involved a friend’s political fate. But Scalia, writing in the Cheney matter, said possible “political damage” for one of his friends was not reason enough for him to step aside.

“Political consequences are not my concern,” he wrote. “To expect judges to take account of political consequences -- to assess the high or low degree of them -- is to ask judges to do precisely what they should not do.”

But the potential for a conflict of interest -- or at least the appearance of conflict -- did not go unnoticed by Rep. Pickering. In the spring of 2002, shortly after Scalia turned down the Democrats’ appeal, the congressman decided against joining Scalia and his father on their annual turkey hunt. “I did not want any opportunity for others to raise questions during that period of time,” Rep. Pickering said.

In a separate instance three years ago, Scalia went pheasant hunting with the Republican governor of Kansas on a trip arranged by Kansas’ state lawyer during a month when the state had two cases pending before the high court.

The Mississippi redistricting dispute, like the Cheney and Kansas cases, illustrates that the rules are none too clear for Supreme Court justices and possible conflicts of interest.

In 1974, Congress enacted a broadly worded law that said: “Any justice (or) judge ... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” But unlike other federal and state judges, the Supreme Court justices decide for themselves whether their impartiality “might reasonably be questioned.”

In the Mississippi case, Scalia apparently saw no reason his objectivity might be questioned.

The state learned in 2001 that it would lose one of its five seats in the House, and politicians in both parties focused on merging the districts served by Pickering and Shows.

At first, Shows was seen as having an advantage, since Democrats controlled the state Legislature as well as the governor’s office. But lawmakers could not agree on a new plan.

One proposal had nearly 39% black voters in the merged district, which was seen as favorable to Shows. A competing plan had fewer than 30% blacks, and it was seen as benefiting the Republican.

By late fall, the lawmakers were deadlocked. A March 1, 2002, deadline for resolving the matter loomed. Each side went to court.

The Democrats sued in state court and asked a judge elected from a Democratic area to draw the new districts. Republicans responded by asking the panel of three Republican federal judges to decide the matter.

Robert McDuff, the lawyer for the Democrats, thought he had a valuable precedent on his side: a 1993 Supreme Court opinion written by Scalia himself. That opinion stemmed from a similar redistricting dispute in Minnesota.

Citing “principles of federalism,” Scalia said “the Constitution leaves with the states primary responsibility for apportionment of their federal congressional and state legislative districts.”

Federal judges must “defer consideration of disputes involving redistricting where the state, through its legislative or judicial branch, has begun to address that highly political task itself,” Scalia said in the 1993 case.

To McDuff’s way of thinking, that meant the Democrats’ state plan for drawing a new district should prevail. Indeed, in late December 2001, after the state Supreme Court cleared the way, the state judge approved the plan the Democrats had favored.

But the state plan had to clear one more hurdle. Under the Voting Rights Act of 1965, Southern states that had deprived blacks of the right to vote had to obtain approval of the U.S. Justice Department before drawing new districts.

So the state’s plan was put on hold for 60 days to allow for the review by the Justice Department. The clock began ticking on Dec. 26, when Mississippi submitted its plan to Washington.

In early January 2002, the three federal judges announced they would draw their own district map in case the Justice Department failed to approve the state’s plan. They set a deadline of Feb. 25 for the state to adopt a final redistricting plan.

When Feb. 25 arrived, there was still no word from the Justice Department. The next day, the federal judges imposed the plan favored by the Republicans.

Mike Moore, then the Democratic attorney general in Mississippi, says he has yet to hear a good reason why the Bush administration’s Justice Department did not act on the plan drawn by the state judge.

“It was unusual, very unusual.... They didn’t have a reason not to [approve] the state plan,” he said. “Then, basically you had a battle of courts, and I would have thought the fail-safe was for this to be decided by the state court.”

Democratic lawyer McDuff filed an emergency appeal at the Supreme Court to stop the Republican plan. Since Scalia oversees the 5th Circuit, the appeal was sent to him.

Within hours, Scalia turned down the appeal and allowed the Republican plan to take effect. McDuff then refiled an appeal with the full court; it too was turned down.

By March 1, the Mississippi district lines were set. Pickering and Shows were paired against each other in a district that heavily favored the Republican. And in November, Pickering won handily.

Today, the congressman is widely seen as a successor to Trent Lott or Thad Cochran as U.S. senator from Mississippi. And he has resumed his turkey-hunting trips with Scalia and his father.

On this month’s outing, according to the congressman, it was a member of the next generation of Pickerings -- his 12-year-old son -- who bagged the biggest bird.