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Sitting Ducks

Posted by Rick · August 5th, 2004 · No Comments

I meant to get to this story several days ago, but when you start writing for a living, blogging suddenly becomes less “fun” and starts to feel like “oh-no,-more-writing?!”

Nevertheless, the “interesting” juxtaposition of stories in the San Francisco Chronicle on my birthday (July 31) begs for me to at least bring it to your attention.

A story on the front page of the Business section (page C1) sports the headline “ChevronTexaco profit more than doubles.” The story continues on page C2, where it sits neatly tucked up inside another story with the headline “Energy industry cautious about increasing oil output.”

Just in case the irony is lost on some, the ChevronTexaco story quotes George Gaspar, an analyst for Robert W. Baird & Co., putting the case mildly: “This was an absolute blowout quarter. I don’t think there’s any other way to describe it.” Oppenheimer & Co. equity analyst Fadel Gheit, however, did find another way to describe it when he said, “We have not seen the level of capital spending (on exploration and production) reflect the high oil prices or obscene profits.” Of course, Gheit wasn’t talking just about ChevronTexaco.

Yet ChevronTexaco’s story is certainly worth noting. Their net income this past year was 4.13 billion dollars. The year before? A mere 1.6 billion. As the story from page C1 notes, they’re “benefiting from the continuing surge in oil and gas prices around the globe.” Well, it’s good to see that someone is.

ChevronTexaco, by the way, is just one company currently gouging Americans at the gas pumps. (And they’re doing it at a time when the cost of a barrel of oil is almost the same as it was during the “crisis” of the 1970s that resulted in gasoline prices approximately half of what they are today.)

On the other hand, did we really expect it to be different? After all, the United States’ energy policy was drafted in a meeting between Vice-President Dick Cheney — who, like the President, is a multi-millionaire oilman — and the chief executives of the major oil companies. And the American public, says Cheney, is not even entitled to know who was there, let alone what was said.

At first blush, this might make a reasonable person a little suspicious, especially given that Cheney has waged a significant battle in the courts to keep the American people (that would be “the people” in “government of the people, by the people and for the people”).

On the other hand — hey, how many hands do I have here, anyway?! — what is “reasonable”?

The Supreme Court of the United States, in Cheney v. United States District Court for the District of Columbia (2004) 124 S.Ct. 1391 [158 L. Ed. 2d 225], in an opinion written by none other than Supreme Court Justice Antonin Scalia, noted that it was unreasonable for anyone to believe that just because Cheney took his good friend Scalia duck-hunting right before Cheney’s case went before the Court, he would be favorably inclined toward Cheney. Scalia callously noted “If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined.” (Cheney, supra, 124 S.Ct. 1391 at 1403.)

Now I have no doubts whatsoever that Scalia is unable to imagine the deep trouble the country is in right now. After all, he’s hanging out with Cheney! But the comment is more than a little disingenuous. The suggestion that Scalia might consider recusing himself wasn’t because anyone believed he was bought off with a duck hunt. The suggestion was that there might be an untoward appearance that he’d been bought off — period.

More likely, Scalia was not bought off at all. Nevertheless, there is cause for concern and at least an appearance of impropriety when a good friend of the Vice-President and President, who just happens to be a Supreme Court Justice, coincidentally goes on a big duck-hunting trip with the Vice-President as that Vice-President’s case is headed to the Supreme Court upon which his good friend happens to sit. And that concern is not limited to any “appearance of impropriety.” Scalia’s own opinion gives some reason to believe that he has been compromised. When he writes about “the issue here,” it appears quite clear that he just doesn’t get it.

There are, I am sure, those who believe that my friendship with persons in the current administration might cause me to favor the Government in cases brought against it. That is not the issue here. Nor is the issue whether personal friendship with the Vice President might cause me to favor the Government in cases in which he is named. None of those suspicions regarding my impartiality (erroneous suspicions, I hasten to protest) bears upon recusal here. The question, simply put, is whether someone who thought I could decide this case impartially despite my friendship with the Vice President would reasonably believe that I cannot decide it impartially because I went hunting with that friend and accepted an invitation to fly there with him on a Government plane. If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined. Cheney, supra, 124 S.Ct. 1391 at 1403

It’s a nice spin, but “the issue here” isn’t whether Cheney bought Scalia off with a duck hunt and an airplane ride, even on a “government” plane. “The issue here” is what that trip represented, which is the close tie of friendship betwixt the two.

The ethical standard to which Scalia should aspire is contained within 28 U.S.C.A. ? 455(a):

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (Emphasis added.)

Scalia is aware of this United States Code section and, although he admits that someone could think there are questions about a potential lack of impartiality, blithely notes,

Since I do not believe my impartiality can reasonably be questioned, I do not think it would be proper for me to recuse. Cheney, supra, 124 S.Ct. 1391 at p. 1401.

He indicates that part of his reasoning for this is that,

My recusal would also encourage so-called investigative journalists to suggest improprieties, and demand recusals, for other inappropriate (and increasingly silly) reasons. The Los Angeles Times has already suggested that it was improper for me to sit on a case argued by a law school dean whose school I had visited several weeks before–visited not at his invitation, but at his predecessor’s. Cheney, supra, 124 S.Ct. 1391 at p. 1402.

Ignoring the pejorative “so-called” impliedly applicable to anyone who might question Scalia, one wonders what happened to the “reasonable person” standard. Regardless of what any given newspaper says, even Scalia should be capable of distinguishing between a visit to a law school at the invitation of a prior dean and a duck-hunting trip at the invitation of an old friend right before that friend’s case goes to the Supreme Court on which Scalia sits! News organizations will occasionally publish outrageous stories — witness Fox’s version of “news,” where this happens by the minute. They are, after all, in the business of selling, convincing and inculcating, rather than reporting, these days. The rest of us aren’t always so stupid as to be unable to distinguish between non-acquaintances and good friends. (Demonstrating the irony of this, even newspapers recognize the distinction; they just deliberately ignore it when trying to sell “news.”)

Scalia’s own opinion should give a reasonable person pause when it comes to determining whether or not he can impartially consider the case. While noting the accuracy of the brief on the motion to have him recused, he states “as the motion cruelly but accurately states….” ( Cheney, supra, 124 S.Ct. 1391 at p. 1403.) A motion, accurately stating the grounds upon which recusal should be considered, is characterized by Scalia as cruel because it stated those grounds — however accurately it may have done so. How mean of them to accurately state the facts supporting their motion to recuse!

This is not symptomatic of an impartial judge. It’s all the more problematic when you take into account that he’s one of the five who elected the current administration in the first place (see Bush v. Gore (2000) 531 U.S. 98 [121 S. Ct. 525; 148 L. Ed. 2d 388]) and that Scalia and Cheney are not mere acquaintances, but long-time friends.

Meanwhile, gasoline prices in Fresno hover around “a low” of $2.06 per gallon, with local news organizations promising this “low” will be short-lived. ChevronTexaco’s net income has gone from $1.6 billion to $4.13 billion in one year. The energy industry doesn’t want to increase production of oil because it might lower prices at the pump. ( See Brad Foss, “Energy industry cautious about decreasing oil output” (July 31, 2004) San Francisco Chronicle at p. C2.)

And no one discussed in this article has anything but our best interests (and a smoothly-functioning corporate-driven government and judicial system) at heart.

Categories: Corporations


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