WASHINGTON — The major media, particularly The Washington Post, have generated a lot of controversy over Supreme Court Justice Antonin Scalia's unofficial social contact with Vice President Dick Cheney, who is a party in a case before the court.
At the same time, the media have largely ignored Justice Ruth Bader Ginsburg's close official relationship with the NOW Legal Defense and Education Fund, a group highly active in promoting abortion on demand, homosexual rights, discrimination against men and other radical stands in the nation's federal judiciary.
As recently as March 23, NOW Legal Defense — a nonprofit group that is separate from the National Organization for Women — highlighted on the front page of its web-site its close relationship with Ginsburg.
“NOW Legal Defense president Kathy Rodgers shares the spotlight with Supreme Court Justice Ruth Bader Ginsburg at the fourth annual Ruth Bader Ginsburg Lecture Series on Women and the Law,” says a photo caption beneath a picture of the two.
Ginsburg spoke Jan. 29 to the Association of the Bar of the City of New York at an event co-sponsored by NOW Legal Defense. As recently as two weeks earlier, she had sided with NOW Legal Defense's position in a Supreme Court case.
At least 13 congressmen thought something was amiss.
“It is well known that NOW Legal Defense engages in active lobbying on behalf of pro-abortion activists and regularly submits briefs to the Supreme Court in a variety of cases,” the congressmen wrote Ginsburg in a letter dated March 17. “As a matter of fact, an entire section of the NOW Legal Defense website is dedicated to cases that are heard before the high court. … Federal law states that a judge or justice ‘shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.’”
“As legislators, we believe your actions call into question your ability to rule with impartiality on any case involving abortion,” the congressional letter stated. “We therefore respectfully request that you immediately recuse yourself from any such cases.”
Grounds for Recusal?
“I saw what they were doing to Scalia over a supposed contact at a duck hunt,” Rep. Joe Pitts, RPa., the lead author of the letter, told the Register in explaining what prompted him to write it.
Critics say Scalia should recuse himself from the case involving Cheney because he flew on Cheney's plane to and participated in a duck hunt that included Cheney, among others. Litigants in the case are seeking to obtain information about Cheney's secret energy task force.
Scalia recused himself from a case involving a challenge to the constitutionality of saying the Pledge of Allegiance in public schools with the phrase “under God” after he publicly commented on the case. A Supreme Court justice has sole discretion in deciding whether to recuse himself from a case.
“In the case of Justice Ginsburg, this is clearly an official relationship,” Pitts said. “The media are very partial in matters such as abortion and liberal jurists.”
Scalia has refused to step down from the case involving Cheney, saying he and the vice president were not alone together on the hunting trip except for very brief periods and never discussed the case.
Asked on March 23 why The Washington Post had run so many articles on the Scalia-Cheney question but had not mentioned the Ginsburg issue, Tom Frail, a Post editor, replied: “We might do something in the future.”
He said the Post believed the Scalia-Cheney story was bigger “because Justice Scalia is on the Supreme Court and it involved the vice president of the United States.” Pressed on the question, he conceded, “You have a good point.”
There is another substantial difference between the alleged conflicts of interest involving Scalia and Cheney: Cheney is a party in his case, though only in his official capacity and not personally, whereas NOW Legal Defense has filed friend-of-the-court briefs only. Scalia himself has pointed out that the case does not involve a lawsuit against the vice president as a private individual.
But, said Rep. Walter Jones, a Republican Catholic congressman from North Carolina and co-signer of the letter, “I am very concerned about the relationship with the NOW group. How can she make impartial decisions about life issues and abortion?”
“While friendship is a ground for recusal of a justice where the personal fortune or the personal freedom of the friend is at issue,” Scalia wrote in a response to a formal motion by the Sierra Club to recuse himself from the case, “it has traditionally not been a ground for recusal where official action is at issue, no matter how important the official action was to the ambitions or the reputation of the government officer.”
“We think it's a political ploy to distract attention from the Scalia-Cheney story,” said Bill Scher of NOW Legal Defense about the congressmen's letter. He said Ginsburg's affiliation with the lecture series is innocuous.
“It's an educational event,” he said. “There is no advocacy at the event. There is no fund-raising at the event. … Justices speak before groups that file briefs all the time. They speak before the American Bar Association. The ABA files briefs.”
He also said Ginsburg receives no money from NOW Legal Defense.
Supreme Court public information officer Kathy Arberg said March 23 that Ginsburg's office had not yet received the letter and had no comment on the issue.
Ginsburg defended herself in response to questions from law students March 12.
The lecture series “is not a money-making enterprise,” she said. “I think and thought and still think it's a lovely thing. Let the lecture speak for itself. … There is no one to replace us. It makes it quite important that we not lightly recuse ourselves.”
“She certainly should recuse herself on issues relating to abortion,” said Terry Scanlon, president of the Capital Research Center, a Washington group that monitors nonprofits and their influence on public policy. He said his center was working on a report about Ginsburg's activities.
Joseph A. D'Agostino writes from Washington, D.C.