The Ties That Bind Scalia and Olson

Appearances matter, on the U.S. Supreme Court as much as

anywhere else in public life. Appearances matter still more when the nation’s

highest court assumes the responsibility of determining the outcome of a

bitterly tied election for the Presidency. Whatever the Court’s ultimate

decision may turn out to be-and that remains an open question as this is being

written-the conduct of the Court’s leading conservative, Justice Antonin

Scalia, has created an appearance of partiality and bias that undermines

confidence not only in its momentous decision to stay the counting of ballots

in Florida, but in the Court itself.

Justice Scalia is known almost as well for his belligerence

as for his brilliance. Adhering to that profile, his first misstep was his

failure to restrain himself when Justice John Paul Stevens filed a sharp

dissent from the stay granted to George W. Bush. Worse, in his brief concurring

opinion, Justice Scalia managed to give the impression that he had decided the

case in Mr. Bush’s favor before it had been heard; that he feared Mr. Bush

might lose if all the disputed votes were counted; and that he felt

considerably greater concern about the resulting effect of that circumstance on

Mr. Bush’s Presidential “legitimacy” than about the possibility that some

Americans might have forfeited their franchise to a malfunctioning system.

Aside from his initial outburst, there are circumstances in

this case that leave a mild whiff of cronyism emanating from Justice Scalia’s

chambers. Two of the justice’s nine children are connected with law firms that

represent Mr. Bush. His son Eugene is a partner at Gibson, Dunn & Crutcher,

the very same firm that houses Theodore B. Olson, who argued the Bush case

before Justice Scalia and his eight colleagues. Another son, John, has just

joined Greenberg, Traurig, the firm of Bush attorney Barry Richard, who

represented the Bush camp in the Florida Supreme Court.

It isn’t difficult to imagine how greatly the partnership

interests of two Scalia offspring would be promoted by a victory for Mr. Olson

and Mr. Richard (and their firms) in one of the most important legal cases in

history. And without casting any aspersion on Justice Scalia’s ethics, it is

easy to understand why that dual coincidence disturbs many Democrats. The

Republican chorus has been howling for weeks about the supposed partisan “corruption”

of the Florida courts, despite the absence of any hint of conflicts of

interest.

If one of Al Gore’s attorneys had just hired the son or

daughter of one of the moderate justices, the Republican crazies would be

demanding his indictment. If two relatives of a justice were partners of David

Boies, that would be regarded as just cause for an insurrection.

Yet the ties that bind Justice Scalia and Mr. Olson

represent the affinity of a like-minded, very powerful clique rather than any

old-fashioned, county-courthouse back-scratching. Both men are stalwarts of the

Federalist Society, a nationwide association of conservative lawyers that grew

into a virtual hiring hall for federal jurists during the Reagan and Bush

administrations. Both have an ideological interest in maintaining Republican

control of the judiciary. No doubt Justice Scalia-who reportedly grumbled last

spring about quitting the bench in frustration if Mr. Gore becomes

President-would be delighted to see Mr. Olson don the black robe himself someday

under another Bush Presidency.

None of the above, however, is nearly as troubling as the

shared eagerness of these Federalist brethren to prevent the counting of any

votes that might threaten their political aims. That impulse apparently trumps

even their own hallowed principle of state’s rights.

How ludicrous it is now to hear them appeal to federal

authority in defense of “equal protection” for Florida voters, when so much

conservative jurisprudence over the past 40 years was designed to deny that

same kind of protection to black voters in the South. If the Republicans truly

had any commitment to equality for all citizens, they might utter a word or two

against the dilapidated voting machines that are concentrated in counties where

minorities and Democrats live, while Republicans enjoy the comparative accuracy

of optical scanning equipment.

When a few Democrats proposed to disqualify absentee ballots

from certain counties because of illegalities in the application process,

Republicans replied indignantly that those errors were not the fault of the

innocent voters. (And a black, female Democratic judge agreed with them, as did

the maligned Democratic appointees on the Florida Supreme Court.) When

Democratic voters are victimized by faulty equipment, without violating any

law, the same Republicans smirk that it’s just tough luck. The implication that

all voters are equal, but some are more equal than others, is impossible to

ignore.

And that is the appearance which will really matter, long

after all the little links between Justice Scalia and the conservatives

litigating for Mr. Bush are forgotten.