There's no way Justice Scalia can duck the issue now that Sierra Club has formally moved for recusal in the Cheney case.
The Sierra Club today formally requested the recusal of Supreme Court Justice Antonin Scalia from its case against Vice President Cheney and the secret Energy Task Force. Citing the intense public attention drawn to the January duck hunting trip taken by Cheney and Scalia, the Sierra Club reluctantly concluded that recusal is necessary to “redress an appearance of impropriety and to restore public confidence in the integrity of our nation's highest court.”
“Unfortunately, the Cheney-Scalia vacation mirrors the secrecy with which the Bush Administration often conducts business,” said David Bookbinder, Sierra Club's Washington Legal Director. “The public is continually shut out.”
The recusal motion filed today cites the dozens of editorials and editorial cartoons calling for Justice Scalia's withdrawal from the case as evidence that his impartiality is being reasonably questioned—the federal test for recusal. From the editorials and cartoons in papers across the country, to Jay Leno's monologue on the Tonight show, opinion leaders are questioning this trip and how it reflects on the Supreme Court.
“The public debate clearly echoes the common sense conclusion that the duck-hunting vacation taken by Cheney and Scalia creates the appearance of impropriety,” said Bookbinder.
The tactic of using the public commentary as evidence is sort of interesting, and demonstrates the wisdom—and also the possible vice—of the standard being one of 'reasonable appearance'.
On balance, I think it's a good standard, as one doesn't wish to put litigants into the postion of having to claim actual bias. No one would, and they'd never win. And this case is one where I think that the reasonable appearance of bias is quite clear. But I could imagine many cases in which the papers had a field day, but the accusation was not reasonable.
Bottom line: I don't sign on to the 'lots of smoke equals fire' view. A public outrcry, or even lots of jokes, is not sufficient to create a need for a recusal. And I don't understand the Sierra Club (based on the press release quoted above) to be arguing that the issue is that simple either. Rather, I take it that the evidence of public beliefs is presented at least in part to counter Scalia's public dismisal of the reasonableness of the concern in this case.
Just to repeat in case you missed it: the case involves the legality of secret meetings between Chaney and oil company execs. Some have alleged/speculated that in addition to discussing how to gut environmental rules, some pariticpants disucssed who would get access to Iraq's oil…and this in the early days of the current administration.
Justice Scalia's long and private trip—a multi-day secret meeting, albeit a social even not a business meeting—suggests not only a close relation with the litigant, but also a tin ear to the issues of openness.
Update: Here's what the SCOTUS Blog has to say on the subject:
We understand that this request was made in the form of a motion to the full court. In our experience, neither the filing of a “motion” nor submitting it to the full court was appropriate. Instead, recusals in the Supreme Court are properly handled by a “suggestion” of recusal submitted to the particular Justice, whose decision on whether to participate is not reviewed by the full court. That was the procedure successfully used in the Newdow pledge case. But form doesn't matter, given that (as the AP article explains) Justice Scalia has already made clear that he isn't going to recuse himself.