The Selling of America: Supreme Court Justice Antonin Scalia , VP Dick Cheney, and Corruption on the Supreme Court

Scalia won't recuse himself from Cheney case

U.S. Supreme Court Justice Antonin Scalia refused Thursday to recuse himself from an upcoming case involving Vice President Dick Cheney, with whom he recently hunted and dined.

"I do not believe my impartiality can reasonably be questioned," Scalia said in a 21-page memorandum, rejecting suggestions of an appearance of a conflict of interest.

"If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined," he wrote.Cheney's office had no immediate response.

In the detailed memo, Scalia cited legal precedent and offered personal observations about the controversy.

He dismissed a call from the environmental group Sierra Club that he recuse himself because a January hunting trip he and Cheney took together gave the "appearance of impropriety."

That trip came three weeks after the high court agreed to hear a case over whether the White House had to turn over documents relating to the energy task force Cheney headed in 2001.

Under judicial rules, Supreme Court justices, unlike other judges, have the power to decide whether to remove themselves from cases. The justices have wide discretion since their decisions cannot be appealed.

Sen. Patrick Leahy of Vermont was one of two Democratic lawmakers to call on Scalia to recuse himself. The other was Sen. Joe Lieberman of Connecticut.

"Instead of strengthening public confidence in our court system, Justice Scalia's decision risks undermining it," Leahy said in a statement.

"Such near-sightedness on a matter so basic to public trust in the independent judiciary is as puzzling to the American people as it is harmful to the court. For other courts, the reason to recuse under such circumstances would be self-evident."

Federal laws dictate judges or justices should remove themselves from cases if questions arise about their fairness or impartiality.

Scalia concluded friendship alone did not meet that standard. "My recusal is required if ... my impartiality might reasonably be questioned," he said.

"Why would that result follow from my being in a sizable group of persons, in a hunting camp with the vice president, where I never hunted with him in the same blind or had other opportunity for private conversation?"

Scalia said that he did not remember being alone with Cheney and that they never discussed the case.

The Fruits of Fraternity

In November, 2003—two months after the Bush Administration asked the U.S. Supreme Court to overrule a lower court's decision requiring the White House to identify members of an energy task force—Vice President Dick Cheney and Justice Antonin Scalia were observed dining together at a restaurant on Maryland's Eastern Shore [1].  The case involved a lawsuit charging that Cheney and his staff violated open-government rules by secretly meeting with lobbyists for the oil, gas, coal, and nuclear industries prior to formulating the administration's energy policy [2].

In January, 2004, following the decision of the Supreme Court to hear that case, Cheney and Scalia spent part of a week together,hunting ducks in Louisiana [3].

According to Charles Lewis, director of the Center for Public Integrity, the fraternization of judges with litigants who come before them in court "...gives the appearance of a tainted process where decisions are not made on the merits..." [1].

When questioned about his private involvement with Cheney, Scalia responded: "I do not think my impartiality could reasonably be questioned." [4]  This is the same mantra routinely echoed by judges when confronted with the obvious truth of their improper conduct.

In the wake of public outcry over judicial conflict of interest, Chief Justice William H. Rehnquist named a high-level panel to investigate the federal court's handling of all judicial misconduct [5].

In the end, the Supreme Court avoided ruling on whether Cheney should make public the industry lobbyists who conferred with his energy-policy task force, and it remanded the case back to the appellate court.  However, in his concurring opinion, Scalia made clear that he would have preferred to dismiss the case rather than requiring the lower court to reconsider it [6].

The behavior of judges is guided by codes of conduct to which they are expected to adhere.  Thus, a judge "...shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." (Canon 2A)  "A judge shall conduct all of the judge's extra-judicial activities so they do not cast reasonable doubt on the judge's capacity to act impartially as a judge." (Canon 4A1)  "A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment." (Canon 2B)  "Nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge." (Canon 2B) [7].

What the public should understand is that these canons are advisory only.  No penalties are associated with their violation. They are widely ignored, and citizen complaints of judicial misconduct are routinely dismissed.  This circumstance suggests that authority to decide questions of judicial impropriety should be removed from judges, who are usually self-serving, and placed in the hands of a truly autonomous body.  It argues for creation of a law that would subject errant judges to the scrutiny of independent, citizen grand juries.
References

1. Jonathan D. Salant, "Critics question propriety of Cheney, Scalia socializing," The Advocate, Baton Rouge, January 18, 2004.
2. David G. Savage, "Duck hunt raises ethics questions; Cheney's energy case pending before Scalia," The Times-Picayune, New Orleans, January 17, 2004, p. A-10 (from the Los Angeles Times).
3. J.E. Bourgoyne, "Cheney, Scalia duck into La. to hunt," The Times-Picayune, New Orleans, January 9, 2004, p. A-15.
4. David G. Savage, "Trip with Cheney puts ethics spotlight on Scalia; Friends hunt ducks together, even as the justice is set to hear the vice president's case, Los Angeles Times, January 17, 2004, p. A-1.
5. "Rehnquist appoints panel to probe handling of judicial misconduct," Los Angeles Times, May 26, 2004, p. A-23(from wire services).
6. David G. Savage, "Supreme Court backs up Cheney in records fight; Energy panel case sent back to appeals," The Times-Picayune, New Orleans, June 25, 2004, p. A-1(from the Los Angeles Times).
7. ABA Model Code of Judicial Conduct, 2000 Edition, American Bar Association, ABA Book Publishing, Chicago, 1999.

Trip With Cheney Puts Ethics Spotlight on Scalia

Friends hunt ducks together, even as the justice is set to hear the vice president's case.

January 17, 2004|David G. Savage | Times Staff Writer

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WASHINGTON — Vice President Dick Cheney and Supreme Court Justice Antonin Scalia spent part of last week duck hunting together at a private camp in southern Louisiana just three weeks after the court agreed to take up the vice president's appeal in lawsuits over his handling of the administration's energy task force.

While Scalia and Cheney are avid hunters and longtime friends, several experts in legal ethics questioned the timing of their trip and said it raised doubts about Scalia's ability to judge the case impartially.

 BUT SCALIA REJECTED THAT CONCERN FRIDAY, SAYING, "I DO NOT THINK MY IMPARTIALITY COULD REASONABLY BE QUESTIONED."

Federal law says "any justice or judge shall disqualify himself in any proceeding in which his impartiality might be questioned." For nearly three years, Cheney has been fighting demands that he reveal whether he met with energy industry officials, including Kenneth L. Lay when he was chairman of Enron, while he was formulating the president's energy policy.

A lower court ruled that Cheney must turn over documents detailing who met with his task force, but on Dec. 15, the high court announced it would hear his appeal. The justices are due to hear arguments in April in the case of "in re Richard B. Cheney."

In a written response to an inquiry from the Times about the hunting trip, Scalia said: "Cheney was indeed among the party of about nine who hunted from the camp. Social contacts with high-level executive officials (including cabinet officers) have never been thought improper for judges who may have before them cases in which those people are involved in their official capacity, as opposed to their personal capacity. For example, Supreme Court Justices are regularly invited to dine at the White House, whether or not a suit seeking to compel or prevent certain presidential action is pending."

Cheney does not face a personal penalty in the pending lawsuits. He could not be forced to pay damages, for example.

But the suits are not routine disputes about the powers of Cheney's office. Rather, the plaintiffs -- the Sierra Club and Judicial Watch -- contend that Cheney and his staff violated an open-government measure known as the Federal Advisory Committee Act by meeting behind closed doors with outside lobbyists for the oil, gas, coal and nuclear industries.

Stephen Gillers, a New York University law professor, said Scalia should have skipped going hunting with Cheney this year.

"A judge may have a friendship with a lawyer, and that's fine. But if the lawyer has a case before the judge, they don't socialize until it's over. That shows a proper respect for maintaining the public's confidence in the integrity of the process," said Gillers, who is an expert on legal ethics. "I think Justice Scalia should have been cognizant of that and avoided contact with the vice president until this was over. And this is not like a dinner with 25 or 30 people. This is a hunting trip where you are together for a few days."

The pair arrived Jan. 5 on Gulfstream jets and were guests of Wallace Carline, the owner of Diamond Services Corp., an oil services company in Amelia, La. The Associated Press in Morgan City, La., reported the trip on the day the vice president and his entourage departed.

 

"They asked us not to bring cameras out there," said Sheriff David Naquin, who serves St. Mary Parish, about 90 miles southwest of New Orleans, referring to the group's request for privacy. "The vice president and the justice were there for a relaxing trip, so we backed off."

While the local police were told about Cheney's trip shortly before his arrival, they were told to keep it a secret, Naquin said.

"The justice had been here several times before. I'm kind of sorry Cheney picked that week because it was a poor shooting week," Naquin said. "There weren't many ducks here, which is unusual for this time of the year."

Scalia agreed with the sheriff's assessment.

"The duck hunting was lousy. Our host said that in 35 years of duck hunting on this lease, he had never seen so few ducks," the justice said in his written response to the Times. "I did come back with a few ducks, which tasted swell."

In October, Justice Scalia announced he would not participate in the court's handling of a case involving the Pledge of Allegiance; that case is due to be heard in March. It stems from a U.S. 9th Circuit Court of Appeals ruling two years ago that declared unconstitutional the use of the words "under God" in the Pledge that is recited daily by millions of schoolchildren. These words were added to the Pledge by Congress in 1954, and they amount to an official government promotion of religion, the appeals court said.

Last year, Justice Scalia appeared to criticize that ruling in a speech at a Religious Freedom Day event in Fredericksburg, Va. "We could eliminate 'under God' from the Pledge of Allegiance," he said. "That could be democratically done."