Dispatches from the Creation Wars

Scalia Refuses to Recuse

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.


  1. #1 Flatlander100
    March 19, 2004

    Well, you are right and wrong at once on this one. It would be foolish to expect the justices to not be part of the social scene of DC, which means of course [given that all of them got to the bench by political affiliations of one sort or another in the first place] that they will all but inevitably become friends with and sometime guests of the movers and shakers of both parties.
    Nevertheless, we can expect them to display a certain sensitivity about the appearance of things. When a case is on the docket clearly involving in a major way one of those movers and shakers [in this case Chaney], certainly it is not unreasonable to expect the Justices to be a bit more circumspect in their socializing, a bit less available for social purposes to the parties in the case, until a decision has been rendered. Dinner Chez Chaney is one thing. A distant and pricey hunting trip is quite another.
    Perhaps an old Catholic doctrine might be dusted off here, and refitted for political use. Catholics used to promise not only to avoid sin but “the near occasion of sin.” Perhaps Justice Scalia could commit to avoid not only undue influence but “the near occasion of undue influence.”

  2. #2 Ed Brayton
    March 19, 2004

    Well, at the time that the invitation to go on this trip was extended there was no case on the docket. As far as the cost of the trip is concerned, it’s not as though Cheney invited Scalia on a trip and paid for it. Scalia had been going on this trip for several years and he invited the Vice President along at the behest of the friend on whose land the hunt took place every year. Since the VP by law had to travel aboard Air Force Two, he simply said that Scalia and his son-in-law might as well fly with him rather than taking commercial flights since they all had to fly out of Washington anyway. And as Scalia notes in his memorandum, this was a group of over 20 people and he was never alone with the VP at any time. I would think a dinner at Cheney’s house would be more of an appearance of impropriety than a hunting trip of this type.

    On a larger level, I just think Scalia is right to point out that since 1/10th of the federal cases in the courts at any given time involve high ranking government officials named by name in their official capacities. Given, as you said, the fact that they wouldn’t be on the Supreme Court if they were not very well connected in the Washington power establishment, it would be impossible to have a recusal standard that said that an appearance of impropriety raised solely as the result of a justice having socialized with an official whose office was named in a federal suit was cause for recusal, especially as it regards officials whose friendships were forged as a result of serving together in some capacity decades prior to that.

  3. #3 flatlander100
    March 19, 2004

    I think you are looking at it largely from the POV of whether Scalia was or was likely to have been influenced by such a trip with the case clearly on path for the Supremes’ consideration [formally on the docket yet or no]. What concerns me more is the how the trip involved appears [or may appear] to people… or “the people… generally. Which involves in some way the matter of public confidence in both political and judicial institutions.
    A dinner with friends here, a party with friends there… these are well within the experience of most Americans of whatever class. A distant multi-day hunting trip as the guest of the Vice President is not. It I suspect seems to most people something special, out of the ordinary, and not at all in the category of the common gathering of friends around a table or a bar. Some sensitivity about how things may… and in this case, I think, did and do… look to the public in general is not too much to ask the Justice. No, I don’t think it affected or will affect Scalia’s reasoning. But yes, I think he showed poor judgement in accepting the invitation.

  4. #4 Ed Brayton
    March 20, 2004

    I don’t think justices should recuse themselves based solely on the fact that some people might doubt their impartiality. Scalia did not go as the guest of the Vice President, the Vice President went as the guest of Scalia’s friend, who hosted the hunting trip. Some people will think that that has an appearance of impropriety. But there are a million possible circumstances in which someone (particularly someone politically opposed to whichever justice is under discussion at any given moment) might claim an appearance of impropriety. There is a little mini-tempest going on right now over Justice Ginsburg lending her name to a legal conference sponsored and organized by NOW, an organization that often is involved in legal battles that could come before the court. Undoubtedly, conservatives will complain that this is an appearance of impropriety, and indeed they have been doing so. But every other justice could just as easily be accused of the same thing, for speaking to (and accepting honoraria from) advocacy groups with whom they tend to agree. There are simply too many normal situations that could be construed as an appearance of impropriety to accept that lax a standard to determine when someone should recuse. And especially when it involves Scalia, who in my memory has recused himself more often than most, I’m willing to give him the benefit of the doubt. This despite the fact that I have a long track record of criticizing Scalia for a number of other reasons.

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