Case for Scalia Recusal Becomes Overwhelming

The LA Times gets the scoop:

  • The Vice President's office paid for Justice Scalia's plane trip to the now-notorious duck hunt
  • At least one of Justice Scalia's children also flew on Air Force 2, although the article doesn't say who paid for that ticket
  • In what looks a lot like a sign of guilty consciences, photographers were not allowed to take pictures of the Veep and the Justice deplaning, but were allowed to take pictures a few days later, when the Veep, this time not accompanied by the Justice, was boarding the aircraft.

I'm not saying that every single time a Justice in the course of things related to their official duties gets something of value from the White House they should pay for it, even if the White House has an important case before the court. If, for example, a Justice goes to a state dinner, s/he should not be expected to pay for the meal.

This is totally different. It's a personal not an official thing.

Traditionally the legal definition of chutzpah was 'killing your parents and throwing yourself on the mercy of the court because you are an orphan'. Maybe it's time to redefine it as 'going on a private hunting trip partly paid for by the Vice President's office, then sitting to hear a challenge to the legality of secret meetings held by the Vice President.'

I am certain that history will be brutal to these people, but that's rather cold comfort.

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2 Responses to Case for Scalia Recusal Becomes Overwhelming

  1. Mike says:


    The Washington Post reported last week that the Sierra Club, seeking access to internal documents related to the energy policy task force that Cheney once headed, filed papers addressed to the entire court last week arguing that Scalia’s January hunting trip with Cheney raised reasonable questions about the justice’s impartiality in the case, and that he was therefore required by federal law to recuse.

    Supreme Court Justice Antonin Scalia, born March 11, 1936, was admitted to the Ohio bar in 1962, and was admitted to the Virginia bar in 1970. It appears that Justice Scalia is still a member admitted to both state bars.

    Both the Ohio Supreme Court and the Virginia State Bar have procedures by which an individual can submit a complaint about the ethical conduct of an attorney registered in their state.

    Some people feel that Justice Scalia’s decision to keep secret ex-parte contacts with a party in litigation before the court, to accept financial favors from that party, and to refuse to recuse himself from hearing that case was unethical and showed poor judgment, and reflects badly on the perception of impartiality, and on the decorum of the court.

    Here is how one might file an ethics complaint regarding this matter in the states in which Justice Scalia is admitted: Ohio and Virginia.


    This page describes how to file an ethics complaint regarding an Ohio attorney:

    Here is the Complaint Form:

    You can send the complaint with supporting documentation, including newspaper articles and editorials, to this address.

    Ohio Board of Commissioners
    on Grievances and Discipline
    41 South High St., Suite 2320
    Columbus, Ohio 43215-3461
    Phone: 614.644.5800
    Fax: 614.644.5804

    You can find editorials and articles concerning the situation involving Justice Scalia at these two sites: and search for SCALIA HUNTING

    or take a look at this website that links to several articles and editorials on Scalia’s decision not to recuse himself from the Chaney case.


    This page describes how to file an ethics complaint regarding a Virginia attorney.

    Here is the Complaint Form:

    Office of Bar Counsel
    Virginia State Bar
    Eighth & Main Building
    707 East Main Street, Suite 1500
    Richmond, VA 23219-2800


    Some excerpts from the Ohio Rules of Professional Responsibility that you might also mention in your letter:

    Canon 1. A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal Profession


    EC 7-34 The impartiality of a public servant in our legal system may be impaired by the receipt of gifts or loans. A lawyer, therefore, is never justified in making a gift or a loan to a judge, a hearing officer, or an official or employee of a tribunal.


    EC 7-35 All litigants and lawyers should have access to tribunals on an equal basis. Generally, in adversary proceedings a lawyer should not communicate with a judge relative to a matter pending before, or which is to be brought before, a tribunal over which he presides in circumstances which might have the effect or give the appearance of granting undue advantage to one party. For example, a lawyer should not communicate with a tribunal by a writing unless a copy thereof is promptly delivered to opposing counsel or to the adverse party if he is not represented by a lawyer. Ordinarily an oral communication by a lawyer with a judge or hearing officer should be made only upon adequate notice to opposing counsel, or, if there is none, to the opposing party. A lawyer should not condone or lend himself to private importunities by another with a judge or hearing officer on behalf of himself or his client.


    EC 7-36 Judicial hearings ought to be conducted through dignified and orderly procedures designed to protect the rights of all parties. Although a lawyer has the duty to represent his client zealously, he should not engage in any conduct that offends the dignity and decorum of proceedings. While maintaining his independence, a lawyer should be respectful, courteous, and above-board in his relations with a judge or hearing officer before whom he appears. He should avoid undue solicitude for the comfort or convenience of judge or jury and should avoid any other conduct calculated to gain special consideration.



    (A) A lawyer shall not give or lend any thing of value to a judge, official, or employee of a tribunal.

    (B) In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending, except:

    (1) In the course of official proceedings in the cause.

    (2) In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer.

    (3) Orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.

    (4) As otherwise authorized by law.


    CANON 9

    A Lawyer Should Avoid Even the Appearance of Professional Impropriety.


  2. Michael says:

    Since Justice Scalia is a Justice of a *federal* court, the *state* rules do not apply to him. This is a good rule, as we would not want federal justices subject to state legislatures or courts — for three reasons: 1) we don’t want states able to threaten federal judges; 2) there could be inconsistent rules if they were subject to all 50+ state and territorial jurisdictions; 3) the constitution says so.

    So the short answer to your question is: you don’t.

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