Supreme Court Justice Antonin Scalia has issued a memorandum in which he answers the request that he recuse himself from an upcoming case involving claims of executive privelege for Vice President Dick Cheney as it regards meetings he held in formulating the administration’s energy policy, because he went on a duck hunting trip with Cheney. Not surprisingly, Scalia has denied the request and will not recuse himself from the case. My take? I tend to agree with him. He is right to point out that recusal is different on the Supreme Court than it is on a court of appeals. If a judge on a court of appeals recuses himself, another judge from the court takes his place; that doesn’t happen on the Supreme Court because all judges preside over all cases. Hence, a recusal means only 8 judges hear a case and that increases the chance of leaving the legal question unresolved. As he points out, the court traditionally has held that even in cases where a relative of one of the justices was a partner in a firm with business before the court, justices need not recuse themselves. Certainly the “appearance of impropriety” is higher in those cases than in this case.
I have no doubt that Scalia will rule in favor of Cheney in this case, but I would say that whether he had gone duck hunting with Cheney or not. It is consistent with his previously held positions that he would grant a good deal of leeway to the executive branch in such matters. If he votes in Cheney’s favor it will be because of his legal position on such questions, not because he and Cheney are friends. It’s time to let this tempest in a teapot blow over.