NEW ORLEANS, Louisiana, 12 February 2004 — The US is determined to bring democracy to the Middle East, starting with Iraq. And democracy’s cornerstone is separation of powers — executive, legislative, and judicial.

So eyebrows raised when the second-most prominent member of the judicial branch — US Supreme Court Justice Antonin Scalia — flew off with the second-most prominent member of the executive branch -Vice President Dick Cheney — on Air Force Two, followed by a backup Air Force jet carrying Cheney’s staff and security aides. After all landed, two military Black Hawk helicopters hovered nearby while a heavily guarded motorcade whisked Scalia, Cheney, and entourage to Amelia, Louisiana.

Amelia? Louisiana? Why there?

Ducks. And hunting. We in Louisiana call our land “The Sportsman’s Paradise” because shooting to kill something moving is a deep passion here.

It’s in our blood. In 1815, Louisianians joined forces with pirates and chased British invaders right down the bayous to the Gulf of Mexico. The British never, ever came back to America. Louisiana changed the destiny of the world and saved American democracy.

The Iraqis can thank us all in Louisiana for that. But anyway, as essential to democracy and world affairs as Louisiana is, everybody knows that powerful folks like Scalia and Cheney don’t ordinarily grace little Amelia, Louisiana with state visits. So why fuss over Scalia and Cheney just being out in the cold and rain, running with the dogs, shooting the big shotguns, and doing what Louisiana folks love doing?

Well, for starters, all those helicopters and jet planes and screaming motorcade sirens scared away the ducks. So we in Louisiana are pretty steamed up about that.

Another thing: Cheney claims he can fly where he wants and bring who he wants, and taxpayers just have to pay up. Scalia refused to answer when a reporter asked whether he’d paid his own way. And while it’s true that Scalia and Cheney have a friendship going back to Nixon’s administration, the law is clear — justices can have friends, but are not to accept gifts or anything of value from a litigant appearing before them. To say that Cheney didn’t pay Scalia’s way, the taxpayers did, is disingenuous.

But the real problem here is democracy, that separation of powers thing. And timing.

Scalia and Cheney took their trip just before the US Supreme Court considers a case brought by the White House in which Cheney is a litigant. Cheney wants to keep secret all notes and proceedings of his meetings on Bush’s energy policies. Central is a list of officials and advisors with whom Cheney met as part of Bush’s energy policy task force. Cheney asks the Supreme Court to protect his “right” of executive privilege, which attaches only if all people at the meeting are members of the executive branch.

The Sierra Club and Judicial Watch insist Cheney has no “right” to secrecy if his advisor’s list includes people from private industry, such as energy company executives. They demand to see the list, which proves who attended. President Bush, who had luck with the US Supreme Court in his own electoral struggle, is asking it to hear the case.

Justice Scalia, fresh from his expenses-paid duck-hunting weekend with Cheney, intends to sit in judgment on Cheney’s case with his brother justices.

How fair can Scalia be to The Sierra Club and Judicial Watch, when he’s just spent a very costly and enjoyable weekend away with Cheney? And even if Scalia can be fair, how fair does it look to average citizens, upon whose trust the judiciary depends for its legitimacy?

America’s Founding Fathers used the image of a woman, blindfolded and holding a balance-scale from her outstretched arm, to represent the nobility and purpose of the nation’s judiciary branch. She is an image of utter universality, especially for Muslims. The woman, considered more sensitive, more emotional than men, exemplifies the impartial judge’s struggle. To overcome her emotion, personal preferences, and possible prejudice, she covers her eyes. She holds the delicate balance away from her body — at arm’s length, indicating her detachment and desire to be fair. She must be patient, waiting to feel which side of the evidence is heavier. Only then can she do justice.

The balance is part of the heart of Islam as well. Does not the Qur’an in Surah Al-Hadid say: “Indeed We have sent Our messengers with clear proofs, and revealed with them the Scripture and the Balance (justice) that mankind may keep up justice. And We brought forth iron wherein is mighty power (in matters of war), as well as many benefits for mankind.” These three things — the Book, the Balance, and Iron — are emblems of what holds society together — revelation, justice, and the strong arm of the law.

Holding these qualities sacred is what America has in common with every Islamic nation, state, and person. These are the ties that bind us together, and cannot be severed despite the most outrageous actions of a few. Invading Iraq, Bush claimed he preserved the world from a tyrant’s weapons of mass destruction. When those weapons proved illusory, Bush justified invasion as the only means to remove the tyrant, who had destroyed Iraq’s justice system. The Bush administration now says it will give Iraq a new judicial system.

Americans toppled many statues in Iraq. Perhaps we might send Iraqis a new statue of our lady of justice. But let us not send the figure we sculpt now — a man, unblindfolded, squatting in a duck-blind, alongside his best friend who is now a litigant before him, both holding not symbols of justice but unbridled, unapologetic privilege.

— Sarah Whalen is an expert in Islamic law and teaches law at Loyola University School of Law in New Orleans, Louisiana.