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Who Should Be The Judge?

This is a partial transcript from "Hannity & Colmes", March 10, 2004, that has been edited for clarity.

ALAN COLMES, CO-HOST: Some liberal groups are outraged that Supreme Court Justice Antonin Scalia (search) has yet to recuse himself when the Supreme Court decides a case involving Vice President Cheney (search) and his energy task force.

Scalia accompanied Cheney on a duck-hunting trip to Louisiana in January, but the justice has said that his friendship with the V.P. won't affect any rulings he has to make.

Is Scalia walking too fine a line? Or have liberals found themselves a new target?

Joining us now are two members of the House Judiciary Committee, New York Democratic Congressman Jerrold Nadler and Florida Republican Congressman Tom Feeney. Good to see you both.

Congressman Feeney, let me begin with you. Clearly the idea in recusal is to avoid the appearance of impropriety. Wouldn't it be easier in this case for Justice Scalia to do what he's done about 189 times before, recuse himself from this case?

REP. TOM FEENEY (R), FLORIDA: Well, Alan, it's great to be with you tonight.

I'll be honest, if I had been Justice Scalia's P.R. adviser I would have suggested that he probably postpone his hunt.

But the truth of the matter is the relationships between Supreme Court justices and members of the United States administration go back, way back.

FDR had a great relationship with at least four Supreme Court justices. Abe Fortas and Lyndon Johnson, Chief Justice Vinson and Harry Truman.

The bottom line is, it's up to the judge to determine whether or not he can be an impartial ruler in the case. Otherwise, there's no way to replace a Supreme Court justice.

COLMES: OK, you don't want a situation, though, where somebody's impartiality is questioned. That's what you're trying to avoid here. And so wouldn't it be the wise thing to do for him to just take himself out of this one?

FEENEY: Well, the bottom line is that if every time a Supreme Court Justice socialized with somebody in the administration they took themselves out of cases involving the United States of America, you'd never be able to get a quorum.

The bottom line is, it's up to the individual justice to determine whether he has an actual conflict. And Justice Scalia, as you pointed out, has regularly, when he thought like he did have a conflict, recused himself. This is not one of those cases. By the way Alan...

COLMES: Yes.

FEENEY: Use your logic here. If Vice President Cheney really wanted to lobby in this instance, he wouldn't have gone duck hunting with the justice, he would have just picked up the telephone.

COLMES: I'm not accusing anybody of wrongdoing. Congressman Nadler, we're talking about the appearance of impropriety, or a situation where, according to laws or rules of recusal, someone's impartiality can be questioned.

You don't want that -- You don't want the question to arise. So what's the smart thing to do here?

REP. JERROLD NADLER (D), NEW YORK: Well, the smart thing to do is that he should not -- the Chief Justice Scalia should not have gone on a duck hunting trip with Vice President Cheney three weeks after the Supreme Court accepted the case to argue about the propriety of Vice President Cheney's acts.

And now he should certainly recuse himself. And what Congressman Feeney talks about, socializing with members of an administration and Supreme Court members, is irrelevant. Because you're not normally talking about having a case directly affecting the personal conduct of, in this case, the vice president.

He should clearly recuse himself. But Justice Scalia seems to have a blind spot, because he didn't recuse himself -- Again, I was reading the paper today -- in a case where he made a major speech to some anti-gay rights group just after they heard argument in the consensual sodomy case. He should have recused himself in that case, too.

SEAN HANNITY, CO-HOST: Tom, you know, if you have a sense of humor and you have any sense of history, and you look at all the cases Tom, that liberals defended Janet Reno (search), who stood there be and stonewalled one investigation after another in the case of Bill Clinton (search), it's almost laughable.

Because in this particular case, Mr. Cheney v. the District Court, we're really talking about a case that deals with the institutional role of the vice president and as it relates to a group of activists in the suit, an energy task force and demands for public disclosures.

It's more that type of case it is really anything to do specifically with Cheney, correct?

FEENEY: Well, Sean, that's right. And really the sin here, as Jerry says, there's no proof that there's anything that's gone wrong here when people socialize.

Actually, the real sin here is that two people that believe in the Second Amendment went hunting. And all liberals would to have Justices that believe in the Second Amendment recuse themselves.

The bottom line this case affects all vice presidents and all presidents in the future and what they have to disclose if they have a task force. And it's not just a case about Dick Cheney. It's a case about the office of the presidency.

And every Justice that has had a relationship with a president or vice president or a White House official under this theory ought to recuse himself. And I think that's ridiculous.

HANNITY: To tip on the liberal fashion...

NADLER: If I may...

HANNITY: Go ahead.

NADLER: That's just nonsense. That's just nonsense.

HANNITY: That's not true.

NADLER: Because no one -- no it's not, because no one is saying that the vice president and Justice Scalia can't socialize.

What people are saying is that, when you have a case involving Cheney personally before the Supreme Court, then either the chief Justice shouldn't go on a duck hunting trip with him during the pendency of that case or he should recuse himself. That's...

HANNITY: I didn't hear -- when conservatives were pointing out the conflict of interest of Janet Reno stonewalling and not appointing specific investigations in the case of Bill Clinton I didn't hear you, Congressman...

NADLER: I didn't give any -- I don't recall...

HANNITY: ... or any of your friends saying Reno ought to recuse herself and stop playing defense for the administration she works for. I don't remember you leading that cause.

NADLER: Janet Reno -- Janet Reno was not liked at all by the president, because he viewed her as doing things that were inimical to him. She did plenty of those things.

And the fact of the matter is she -- what you're really saying is she should have appointed special prosecutors in certain cases. I don't remember the details, but I didn't think so at the time.

But she wasn't socializing with the president. She was the attorney general of the United States.

We're not saying that -- we're not saying that Cheney and Scalia can't socialize. We're saying when there's a case pending that involves Cheney and, when conceivably, we don't know, it might show if those documents were provided...

COLMES: Congressman, we're just...

NADLER: ... which is the point of the case.

COLMES: We're just out of time. We've got to -- We've got to take a break. I'm really sorry. Thank you both very much for being with us. Wish we had more time for this segment.

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