Scalia Sees No Reason to Sit Out Cheney Case
Supreme Court Justice Antonin Scalia declared Thursday that he would not withdraw from a case that challenged the secrecy surrounding Vice President Dick Cheney’s energy policy task force, saying that their recent duck-hunting trip to south Louisiana would not cause a reasonable person to question his impartiality.
Scalia confirmed that he flew with Cheney from Washington to Louisiana on a small jet that served as Air Force Two, and said they were joined by the justice’s son and son-in-law. However, their social interaction was limited, he said.
“The vice president and I were never in the same [duck] blind, and never discussed the case,” he wrote in a 21-page opinion.
He added that the “constant practice of justices’ enjoying friendship and social intercourse with members of Congress and officers of the executive branch has not been abandoned, and ought not to be.”
“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.
The Supreme Court is hearing a Sierra Club lawsuit challenging Cheney’s refusal to reveal whether energy industry lobbyists met privately with his energy task force.
Two lower courts had ordered the vice president to turn over documents that would show who met with the task force. Administration lawyers in September appealed the matter to the Supreme Court, arguing that the ruling infringed on the powers of the vice president.
The appeal came before the court in late November, and the justices voted in mid-December to take up the case. On Jan. 5, Cheney and Scalia took their duck-hunting trip. After the Los Angeles Times disclosed the trip, the Sierra Club urged Scalia to withdraw from the case.
Doing so is necessary to avoid “an appearance of impropriety and to restore public confidence in the integrity of our nation’s highest court,” lawyers for the environmental group said.
They pointed to a federal law enacted in 1974 which said “a justice [or] judge ... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Under that law, challengers need not prove a judge is biased. Instead, they need only point out evidence that would cause a reasonable person to think the judge might not be impartial.
In rejecting their motion Thursday, Scalia disputed that the case of “Richard B. Cheney vs. U.S. District Court” was of a special importance to Cheney.
Contrary to what has been said, “this is a ‘run-of-the-mill legal dispute about an administrative decision,’ ” Scalia wrote. “To be sure, there could be political consequences from the disclosure of the fact (if it be so) that the vice president favored business interests, and especially a sector of business with which he was formerly connected. But political consequences are not my concern.”
The Sierra Club said it was not satisfied by Thursday’s response.
“Justice Scalia misses the point,” the group said in a statement. “There’s a problem when a justice and a litigant meet secretly at a private hunting retreat -- regardless of what happens behind closed doors. It is the appearance of secrecy and impropriety that creates the problem.”
However, the group’s lawyers said they would not ask the full court to review Scalia’s decision. “We’re not going to push any further. There’s no way the full court will take this thing on,” said David Bookbinder, the group’s legal director in Washington.
Chief Justice William H. Rehnquist said recently that the court’s policy was that individual justices must decide for themselves whether to step aside in a pending case. Justice Ruth Bader Ginsburg voiced the same view last week.
Two legal experts who have closely followed the duck-hunting controversy praised Scalia for writing a thorough and strong defense of his actions. However, both said they continued to disagree with his decision.
Scalia “is a really good lawyer,” New York University law professor Stephen Gillers said. “He redefines the question while avoiding the central issue. This is not just about a friend who is a party to a case in his official capacity. And it is not a mere social event. Cheney has a substantial personal and political interest in the outcome of this case. This is about Cheney’s conduct, and it comes in a year he is running for reelection.”
Gillers said he also was troubled that Scalia had made himself the sole arbiter of his actions. “This is the law, and he [Scalia] is not above it,” Gillers said.
Agreeing, Northwestern University law professor Steven Lubet said the 1974 law does not envision that a single judge will decide for himself whether his impartiality may be in doubt. “He is supposed to disqualify himself if there is a reasonable question,” Lubet said. “And he is not supposed to answer it alone. It would be better if the answer came from the full court.”
The Scalia-Cheney trip has been criticized on Capitol Hill, but only by Democrats. On Thursday, Sen. Patrick J. Leahy (D-Vt.) faulted Scalia’s refusal to see the “appearance of impropriety” in his actions.
“Such nearsightedness on a matter so basic to public trust in an independent judiciary is as puzzling to the American people as it is harmful to the court,” Leahy said.
As Scalia noted, he and Cheney became friends when they served in the Republican White House in the 1970s. President Reagan appointed Scalia to the U.S. Court of Appeals in 1982 and to the Supreme Court in 1986. Four years ago when he was seeking the presidency, George W. Bush pointed to Scalia as the justice he most admired.
Throughout the opinion, Scalia referred to Cheney as his “friend” and as someone “with whom I am well acquainted.” He said he had gone hunting in south Louisiana every winter for five years at a camp belonging to Wallace Carline, who runs a company providing services and oil rigs in the Gulf of Mexico.
He said he learned that Carline was “an admirer” of the vice president and decided to extend an invitation for Cheney to hunt there with him, “with my own warm recommendation.” He said the invitation was made in the spring of 2003 and that the trip was set “long before” the Supreme Court took up the Cheney energy task force case.
Scalia said the free ride on Air Force Two did not save him or his sons any money.
“Our flight down cost the government nothing, since the space-available was the condition of our invitation. And though our flight down on the vice president’s plane was indeed free, since we were not returning with him we purchased (because they were least expensive) round-trip tickets that cost precisely what we would have paid if we had gone both down and back on commercial flights. In other words, none of us saved a cent by flying on the vice president’s plane,” he wrote.
He and Cheney hunted over a 48-hour period with 11 others, along with Secret Service officers for the vice president, he said. “All meals were common,” Scalia said. “Sleeping was in rooms of two or three, except for the vice president, who had his own quarters.”
He added that he spent little time with Cheney during the hunt, and that they were alone together only for brief and unintentional periods, such as “walking to and from a boat, perhaps, or going to or from dinner. Of course, we said not a word about the present case.”
The Times, citing accounts by a sheriff and an airport official in Louisiana, reported that Scalia’s daughter had accompanied him. Scalia said instead that his married son and son-in-law accompanied him on the trip. They returned to Washington on commercial flights, he said.
Scalia also faulted “so-called investigative journalists” who “suggest improprieties and demand recusals for other inappropriate (and increasingly silly) reasons.” He cited a Feb. 28 Times story that reported the justice had gone to the University of Kansas Law School at the invitation of the dean who was also serving as the state’s lawyer in two cases pending before the Supreme Court during the same month, then went pheasant hunting with the state’s governor.
He also took sharp exception to a March 8 story reporting that Scalia had spoken at a $150-per-plate dinner sponsored by an advocacy group in Philadelphia, some of whose members are suing the city of Philadelphia over its domestic partner law.
The Times’ story incorrectly suggested that the group was a party to the lawsuit, and the newspaper published a correction, as Scalia pointed out in a footnote to Thursday’s opinion. However, Scalia did not mention that he was invited to the dinner by the lead plaintiff in the lawsuit.
“While the political branches can survive the constant baseless allegations of impropriety that have become the staple of Washington reportage, this court cannot,” Scalia wrote. “The people must have confidence in the integrity of the justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, and in an atmosphere where the press will be eager to find foot-faults.”
Citing dozens of newspaper editorials that were submitted to the court, Scalia observed that “I have received a good deal of embarrassing criticism and adverse publicity in connection with the matters at issue here -- even to the point of becoming (as the motion cruelly but accurately states) ‘fodder for late-night comedians.’ If I could have done so in good conscience, I would have been pleased to demonstrate my integrity, and immediately silence the criticism, by getting off the case. Since I believe there is no basis for recusal, I cannot.”