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New Trip Trouble for Scalia

With news that Supreme Court Justice Antonin Scalia dragged home another bag of dead birds to his Washington freezer, questions about his impartiality trail him even more closely.

Scalia still thunders at calls that he recuse himself from a pending case involving chum Dick Cheney. How dare anyone insinuate, he growls, that the duck-hunting trip he took with the vice president last month would sway his vote in a case involving Cheney’s closed private meetings with energy executives.

What then to make of another Scalia jaunt, to Kansas?

As Times staffers Richard A. Serrano and David G. Savage reported Friday, the Supreme Court justice went on a combined college lecture and pheasant hunting trip in Kansas a little over two years ago. His hosts were the then-governor of Kansas, the recently retired state Senate head and a Kansas law school dean. The jaunt was bracketed by two Supreme Court cases, a few weeks apart, in which the dean argued on behalf of the state government. Both cases involved the constitutionality of a Kansas law allowing prison officials to confine sex offenders beyond their sentences.

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In the end, the court held 7 to 2 that state officials could hold sex criminals under certain conditions. Scalia dissented, but said it was only because he felt the decision scaled back an earlier ruling that gave the state even broader power to hold inmates.

Given his tough-on-crime record, Scalia might well have voted the same way whether or not he went shooting. That doesn’t erase the growing questions of propriety.

The last time the Supreme Court faced such an ethics storm was 1969, when Justice Abe Fortas resigned under pressure after it came to light that he had accepted a large honorarium from former legal colleagues, possibly in return for legal advice.

Money is not the issue with Scalia -- he reimbursed the state for the flight aboard the governor’s official plane and for his lodging at the Kansas hunting camp. Access is, even if no one breathed a word about the looming cases. The warm feelings of a couple of days in the field and evenings filled with good conversation and good food tend to linger.

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Federal law directs a judge to disqualify himself “in any proceeding in which his impartiality might be questioned.” Other justices, including Scalia’s colleagues on occasion, seem to have no trouble withdrawing from cases in which there could be doubt about their ability to be fair. Earlier this week, the Sierra Club, one of two groups that brought the Cheney suit, formally asked Scalia to step aside in this matter. It’s overdue for Scalia to do that. He may sit on the highest court of the land but he is surely not above basic ethics.


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