Category Archives: Law: Ethics

If it looks like a duck, and quacks like a duck…

Scalia Defends Hunting Trip With Cheney: Supreme Court Justice Antonin Scalia strongly indicated he will ignore calls to recuse himself from a court case involving his friend and hunting partner, Vice President Dick Cheney.

Scalia told a gathering at Amherst College on Tuesday night there was nothing improper about his accompanying Cheney to Louisiana last month to hunt ducks. The trip came three weeks after the Supreme Court agreed to hear the Bush administration's appeal in a case involving private meetings of Cheney's energy task force.

“It did not involve a lawsuit against Dick Cheney as a private individual,” Scalia said in response to a question from the audience of about 600 people. “This was a government issue. It's acceptable practice to socialize with executive branch officials when there are not personal claims against them. That's all I'm going to say for now. Quack, quack.”

…yup, it's a duck.

The Washington Post asks Sierra Club and Judicial Watch, the ligitants in Cheney v. United States District Court for the District of Columbia, if they will file a recusal petion and gets interesting answers.

Scalia Joined Cheney on Flight: Some legal scholars have suggested that Scalia should recuse himself from the Cheney case because of the trip. But one of the two organizations opposing Cheney in the case, Judicial Watch, disagreed. “We will not be asking for Justice Scalia's recusal,” said Tom Fitton, Judicial Watch president. “We do not think there is a conflict of interest or an appearance of a conflict.”

The other litigant suing Cheney, the Sierra Club, said it had not decided whether to seek Scalia's recusal. Sierra Club lawyer David Bookbinder said the presence of Scalia on the plane makes it appear he was accepting “valuable favors” from Cheney. “We understand why everybody in America is wondering why the appearance of impropriety has not been reached,” Bookbinder said.

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.

Much has been made of the Scalia line quoted in the Los Angeles Times that, “I do not think my impartiality could reasonably be questioned.” As I've already stated, I disagree. What's more important, however, is just how this comment of Scalia's was inappropriate and damaging. I'll set out some reasons below. But first, some detours.

The full text of Chief Justice Rehnquist's Jan. 26, 2004 short letter to Sen. Patrick Leahy clears up an ambiguity caused by the press reports. Recall that the Chief Justice was quoted as saying that,

“Anyone at all is free to criticize the action of a justice—as to recusal or as to the merits—after the case has been decided. But I think that any suggestion by you or Senator Lieberman as to why a justice should recuse himself in a pending case is ill-considered.”

On its face, this is a really, really odd claim.

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AP reports that Chief Justice Rehnquist gave short shrift to the Leahy-Lieberman request for information about the Supreme Court's “canons, procedures and rules” on whether justices should recuse themselves from cases in which “their impartiality might reasonably be questioned.” The Chief Justice's letter is not at the Court's web site, indeed the most recent press release is dated Oct. 2, 2003.

According to AP, Rehnquist said any suggestion that Scalia should recuse himself “is ill considered.” [One reason I want to read the text is that this quote is hard to square with the suggestion later in the article that Rehnquist also took no position on the merits.]

Rehnquist … said that while justices often consult with colleagues when they are considering recusing themselves from a case, there is no formal procedure.

“It has long been settled that each justice must decide such a question for himself,” he wrote in a letter sent to Lieberman, Leahy and each of the other court justices.

Rehnquist did not give an opinion about whether Scalia should step down from hearing the case, but made clear that it was up to Scalia — and no one else — to make that decision. After the case is over “anyone at all is free to criticize the action of a justice,” Rehnquist wrote.

Leahy said Monday that Rehnquist's letter confirms that the Supreme Court, unlike federal appeals courts and district courts, has no recusal procedure or oversight system. He also defended the timing of the letter.

“Because Supreme Court decisions cannot be reviewed, waiting until after a case is decided needlessly risks an irreversible, tainted result and a loss of public confidence in our nation's highest court,” Leahy said.

Allow me to commit lèse majesté here: On these facts, and in the fullness of the context, Scalia's impartiality is very much in doubt. In fact, I personally have very little faith in it. Recusal is called for. A duck hunting trip is nothing like a state dinner. As the Senators said, “when a sitting judge, poised to hear a case involving a particular litigant, goes on a vacation with that litigant, reasonable people will question whether that judge can be a fair and impartial adjudicator of that man's case.”

Remember: the next President will almost certainly appoint at least one, maybe up to three, Justices…an issue oddly absent from the campaign so far.