Does Scalia belong at Bachmann sessions?

  • Article by: KEVIN DIAZ , Star Tribune
  • Updated: January 23, 2011 - 9:21 PM

The justice will cross the street to meet with lawmakers in the first "Conservative Constitutional Seminar" Bachmann is holding. But will he cross a line?

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Supreme Court Justice Antonin Scalia

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WASHINGTON - U.S. Rep. Michele Bachmann, R-Minn., raised a few eyebrows last fall when she announced plans to hold "Conservative Constitutional Seminars" for arriving members of the new GOP-controlled House.

But the decision of U.S. Supreme Court Justice Antonin Scalia to speak at the first class on Monday has raised legal hackles about his participation in what turns out to be a closed-door event in conjunction with Bachmann's Tea Party Caucus.

One of the most outspoken critics is University of Minnesota law professor Richard Painter, chief White House ethics lawyer under former President George W. Bush. Painter notes that Bachmann is among 63 House members who filed a brief in support of a lawsuit by more than two dozen states challenging President Obama's health care overhaul. The case could easily end up before the Supreme Court.

Painter recently posted an entry on the online Legal Ethics Forum entitled, "Justice Scalia Takes Some Tea."

Bachmann's office has portrayed the class as a bipartisan event open to all members of Congress, with more than 40, including Bachmann, expected to attend. No one else from the Minnesota delegation will be there, with the possible exception of freshman Republican Chip Cravaack, who is tentatively scheduled to attend.

In addition to Painter, others have raised alarms about whether Scalia is injecting himself into partisan politics. Among them is George Washington University law professor Jonathan Turley, who wrote a column about it for the weekend edition of the Washington Post.

In an interview with the Star Tribune, Turley said Scalia's participation "suggests an alliance between a conservative justice and a conservative member of Congress."

Bachmann also has received some support in academia.

"This is a complete nonissue," said University of St. Thomas law professor Michael Stokes Paulsen. "There is absolutely nothing unethical or improper about Supreme Court justices or other judges giving public speeches, teaching classes, giving lectures, participating in panel discussions or writing books -- which often may include discussion of their views about the Constitution or specific legal issues. Justices do it all the time."

Supreme Court spokeswoman Kathy Arberg said Scalia accepted an invitation from Bachmann to talk to members of Congress about the separation of powers among the three branches of government -- a doctrine Scalia's critics say he is violating. Arberg's written statement referred to the event as a "constitutional seminar," leaving out the qualifier "conservative" used by Bachmann's office.

Caroline Fredrickson, executive director of the liberal-leaning American Constitution Society, said in a letter to Bachmann on Friday that the term "Conservative Constitutional Seminars" suggests "you do not intend to provide members of Congress with a comprehensive understanding of the Constitution, but instead will offer an interpretive approach that yields results consistent with the political views of Tea Party Caucus members."

Bachmann aides stressed that while the event is being held in conjunction with the Tea Party Caucus, it is not considered a caucus meeting. But, they added, they expect the twice-monthly seminars to be consistent with Tea Party principles.

A spokesman for Bachmann, who is eyeing a White House run, said she views Scalia's participation in the inaugural seminar as "entirely appropriate."

"It's ironic that at a time when the country wants to see a good working relationship between the legislative and executive branches, that some critics have found fault with a member of the judicial branch talking about constitutional issues with members of Congress," said Bachmann communications director Doug Sachtleben. "The fact that a constitutional scholar is offering his insights on constitutional matters to members of Congress from both sides of the aisle should be evidence of a worthwhile dialogue in Washington."

Painter, in an interview, drew a line between public speeches, books, and law school lectures and a closed-door meeting with members of Congress who have business before the high court.

"A lot of what the Supreme Court does is decide whether what Congress does is constitutional," Painter said.

He said it would "help" if the press were allowed to monitor the meeting, where Scalia could be exposed to pressure from lawmakers with political agendas. "There's no guarantee these members of Congress are going to just sit there like potted plants," Painter said.

Bachmann's office said the meeting is closed to the media at the court's request. Arberg, however, said it was Bachmann's office that "set the guidelines for the event."

Whether or not Scalia's presence represents an actual conflict of interest, some scholars say it could at least raise the perception of such a conflict at a time when the national political debate has focused intensely on the constitutional limits of government in health care and the economy.

Adding to the sparks is the timing of the event, coming on a day of national protests and commemorations of Roe vs. Wade, the Supreme Court's landmark ruling legalizing abortion.

"I don't think there's a clear answer to it, but I think raising the issue is appropriate," said court watcher Carl Tobias, who teaches at the University of Richmond Law School.

Kevin Diaz is a correspondent in the Star Tribune Washington Bureau.

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