Trip With Cheney Puts Ethics Spotlight on Scalia
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.”
But this is contrary to the wishes of most Americans, and it should not be done by judges or courts, he added.
The California school district that was on the losing end in the Pledge case appealed to the Supreme Court last summer.
Its lawyers urged the justices to restore the use of the words “under God.”
While the appeal was pending, the Sacramento-area atheist who won the ruling in the 9th Circuit filed a motion suggesting Scalia withdraw from the case. He cited news account of Scalia’s speech and the federal law mandating disqualifications whenever the judge’s impartiality “might reasonably be questioned.” When the court announced it would hear the case, Scalia also announced he would not participate.
Steven Lubet, who teaches judicial ethics at Northwestern University Law School, said he was not convinced that Scalia must withdraw from the Cheney case but said the trip raised a number of questions.
“It’s not clear this requires disqualification, but there are not separate rules for longtime friends,” he said. “This is not like a lawyer going on a fishing trip with a judge. A lawyer is one step removed. Cheney is the litigant in this case. The question is whether the justice’s hunting partner did something wrong. And the whole purpose of these rules is to ensure the appearance of impartiality in regard to the litigants before the court.”
The code of conduct for federal judges sets guidelines for members of the judiciary, but it does not set clear-cut rules. A judge should “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” it says. “A judge should not allow family, social or other relationships to influence judicial conduct or judgments,” it says. Nor should a judge “permit others to convey the impression that they are in a special position to influence the judge.”
In the lower courts, litigants may ask a judge to step aside. And if the request is refused, they may appeal to a higher court.
At the Supreme Court, the justices decide for themselves whether to step aside. On occasion, Justice Sandra Day O’Connor has withdrawn from business cases because she owns stock in one of the companies.
The justices have been reluctant to withdraw from a case simply because a former clerk is handling the dispute, or their son or daughter works at a law firm participating in the case. Last year, for example, Chief Justice William H. Rehnquist said he did not see a need to withdraw from a pending appeal in the Microsoft antitrust case simply because his son, a lawyer, was working on a related case.