Patterico's Pontifications

1/31/2004

RANDOM THOUGHTS ON THE SCALIA/CHENEY RECUSAL CONTROVERSY

Filed under: Judiciary — Patterico @ 12:33 pm

I have tremendous respect for Justice Scalia, and almost always find him persuasive on any topic on which he writes. In my opinion, he is the apotheosis of what a judge should be: a clear thinker with a consistent philosophy, a lively writing style, and above all, a willingness to call ’em like he sees ’em.

I haven’t followed the Scalia/Cheney recusal controversy very closely, and I am not a professional legal ethics scholar. Given my respect for Justice Scalia, and my lack of expertise in the area, I am reluctant to come to a conclusion that Justice Scalia should recuse himself.

Moreover, I can certainly see the political motivations behind the request. You see where this is headed, don’t you? This isn’t about the energy task force. This is about Bush v. Gore. If Scalia can’t hear this case, Democrats would argue, he shouldn’t have participated in Bush v. Gore.

With all of that in mind, though, I’m troubled.

I don’t necessarily care about the fact that newspapers across the country are calling for his recusal. Newspapers get these things wrong all the time.

But when I do a quick “gut check,” I find that I have concerns. They went on a hunting trip together. Doesn’t that arguably indicate a relationship closer than many? Couldn’t a reasonable observer question Scalia’s impartiality under those circumstances?

My questions remain after taking a quick look at the relevant law, including the statute, and this objective analysis of the case law. The analysis makes clear that a judge need not recuse himself simply because he is friends with one of the lawyers or parties — something that might surprise the average citizen. However, in a decision written by Judge Easterbrook, the Seventh Circuit found that recusal would be appropriate in a criminal case, when the judge and the prosecutor planned to go on a vacation together after the trial:

The relation between Judge Kocoras and U.S. Attorney Webb was unusual. These close friends had made arrangements before the trial began to go off to a vacation hideaway immediately after sentencing.

Most people would be greatly surprised to learn that the judge and the prosecutor in a trial of political corruption had secret plans to take a joint vacation immediately after trial. An objective observer “might wonder whether the judge could decide the case with the requisite aloofness and disinterest.” The test for an appearance of partiality in this circuit is “whether an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt that justice would be done in the case.” That hypothetical observer would be troubled by what happened in this case.

U.S. v. Murphy, 768 F.2d 1518, 1538 (7th Cir. 1985) (citations omitted). The court carefully noted:

No one doubts that Judge Kocoras was in fact impartial; his reputation for integrity and impartiality is outstanding. Yet the statutory test is not actual impartiality but the existence of a reasonable question about impartiality.

It seems to me that this logic, applicable to the relationship between a judge and a lawyer, would apply equally (or stronger) to a relationship between a judge and a litigant. (One possible difference: I haven’t seen anything saying that the Scalia-Cheney hunting trip was a “secret.”)

I haven’t read any analysis supporting Scalia’s position. I understand the arguments for recusal. I would be interested in comments from anyone who supports Scalia’s position.

Eugene Volokh, how do you feel about this?

20 Responses to “RANDOM THOUGHTS ON THE SCALIA/CHENEY RECUSAL CONTROVERSY”

  1. The distinction between this case and others is that Cheney is being sued in his official capacity as vice-president of the U.S. The ruling in this case will not only apply to Cheney but will effect the office of the vice-president itself. Its really a pure issue of law rather than a mere matter of personal conduct (personal injury, breach of contract, etc.). For a surprisingly decent discussion of this issue check out today’s NY Times Week In Review (although I’m confused about the last two paragraphs of the article).

    J.T. (e55715)

  2. I don’t think Scalia is technically disqualified, nor obliged to recuse himself. (Although I agreed with and applauded his decision to recuse himself from the Newdow case involving the Pledge of Allegiance.)

    But I wish he hadn’t taken the hunting trip. The Supreme Court Justices traditionally attend State of the Union addresses, for instance, yet pointedly refrain from taking part in the applause/standing ovation contests. I wish Scalia had shown more sensitivity to the public impression he was creating.

    Being an appellate court judge is a lonely business, and it’s especially hard for gregarious sorts (and Scalia, by all accounts, is a personable and gregarious fellow). But the self-imposed isolation is part and parcel of the job. Justice Scalia did no favors to either himself or the dignity of the Court in shooting these particular ducks.

    Beldar (1dfba3)

  3. Bah. Muffed the link I intended there.

    Beldar (1dfba3)

  4. I think it goes far beyond Gore v Bush. No matter what Scalia does, the politics is that he’s a crook, all Republicans are crooks, and Bush needs to be defeated for the good of the planet.

    The idea is to set the stage for wholesale repudiation of the Renquist Court, should a Democrat win and change the balance. Stare decisis meets public distaste for the crooked Scalia-Thomas-Cheney-Haliburton-Bushitler cabal.

    At least that’s what they’re thinking.

    Kevin Murphy (9982dd)

  5. The fact is that the outcome of the Cheney case will effect Cheney not only in his official capacity as Vice President but also personally and politically. For Scalia to claim otherwise is to stretch the truth beyond the breaking point — conduct unbecoming a Supreme Court justice. You don’t have to be a Democrat riled about Bush v. Gore to be concerned about this one.

    Thomas (c2729e)

  6. Thomas, did you read Scalia’s memorandum? I am getting a little tired of hearing people pontificate about issues like this, when they haven’t read the source documents. It’s all publicly available, and easy to access and read.

    Scalia is not claiming that an adverse outcome would not affect Cheney. He is simply saying that political harm is not generally weighed in recusal decisions.

    I don’t know if I buy that, but at least I have read and understand his argument.

    Patterico (f7b3e5)

  7. For Cheney, a professional politician and CEO (Same thing?), political harm *is* personal harm. Since Cheney and Scalia have a personal friendship, Scalia may indeed render an incorrect judgment out of concern for his friend.

    When I read Scalia’s exceedingly long memorandum, I kept thinking, “The Justice protesteth too much!”

    After Scalia trumpeted his bias in a public speech, he properly recused himself from the “Pledge of Allegiance” case now before the Court. By setting up the duck hunting trip with Cheney, his son, and his son-in-law (both of whom were intimately involved in the Bush/Cheney campaign in 2000), Scalia broadcast his bias even more loudly. Unless he wishes to destroy what little public faith remains in the Court, he must recuse himself. It doesn’t matter on which side of the political aisle you sit — this smells rotten.

    Thomas (c2729e)

  8. Oh, and by the way: Remember that the host of the trip was an energy executive who likewise stood to profit personally from Cheney’s back room dealings. This creates an even greater appearance of corruption.

    Thomas (c2729e)

  9. You say the host was an “energy executive who likewise stood to profit personally from Cheney’s back room dealings.”

    So the outcome of the case could embarrass Cheney, which could have an effect on the energy bill, which could have a negative effect on the host’s company, which could have a negative effect on the host’s finances.

    Sorry, but that’s quite an attenuated reed on which to hang a charge of the appearance of “corruption.” It’s about as attenuated as idea as the theory that the host “stood to profit” because he is a taxpayer. See, because embarrassment to Cheney could hurt the Bush/Cheney ticket, leading to a possible Kerry win, leading to higher taxes on the wealthy.

    So Justices cannot associate with taxpayers on any case that might embarrass Cheney.

    Come on.

    Your had a decent argument concerning the political harm to Cheney. Then you had to go and yap about energy executives — which, sad to say, makes you sound a little like a Carville-style hack. You should have quit while you were ahead.

    Patterico (f7b3e5)

  10. Your argument above makes no sense. Clearly, the conflict of interest and the appearance (if not the actual presence) of impropriety is only aggravated by the fact that Scalia was also benefiting directly from the largesse of an oil company executive who had a vested interest in Cheney’s back room dealings.

    Exposing Cheney’s dealings to the light of day would not only hurt Cheney but also Cheney and Scalia’s mutual host, from whom Scalia accepted things of value (in particular, the use of the hunting lodge). The cronyism exhibited here, again, stinks to high Heaven. If Scalia does not recuse himself, the public will believe that he is exhibiting the worst form of corruption.

    Maureen Dowd has written an excellent column on the topic; see

    http://www.nytimes.com/2004/03/21/opinion/21DOWD.html

    Just today, a friend of mine who is a gung-ho Republican gloated to me about Scalia’s refusal to recuse himself. “We have a man on the Supreme Court, and pretty soon Bush is gonna appoint more justices who vote our way. We can’t lose. We rule!”

    In short, the fix is in. So much for ethics… or democracy.

    Thomas (c2729e)

  11. Your argument above makes no sense. Clearly, the conflict of interest and the appearance (if not the actual presence) of impropriety is only aggravated by the fact that Scalia was also benefiting directly from the largesse of an oil company executive who had a vested interest in Cheney’s back room dealings.

    Exposing Cheney’s dealings to the light of day would not only hurt Cheney but also Cheney and Scalia’s mutual host, from whom Scalia accepted things of value (in particular, the use of the hunting lodge). The cronyism exhibited here, again, stinks to high Heaven. If Scalia does not recuse himself, the public will believe that he is exhibiting the worst form of corruption.

    Maureen Dowd has written an excellent column on the topic; see

    http://www.nytimes.com/2004/03/21/opinion/21DOWD.html

    Just today, a friend of mine who is a gung-ho Republican gloated to me about Scalia’s refusal to recuse himself. “We have a man on the Supreme Court, and pretty soon Bush is gonna appoint more justices who vote our way. We can’t lose. We rule!”

    In short, the fix is in. So much for ethics… or democracy.

    Thomas (c2729e)

  12. Sorry for the double posting above. I clicked once and nothing seemed to happen; after 30 seconds I clicked again.

    Thomas (c2729e)

  13. Maureen Dowd has written a typically snide and superficial column on the topic.

    Patterico (f7b3e5)

  14. Her column is by no means snide and superficial. I was thoroughly impressed by the way she debunked Scalia’s fallacious arguments in so few words.

    As I’ve mentioned above, even die-hard Republicans agree with her. The only difference is that they don’t *mind* that the fix is in.

    Thomas (c2729e)

  15. By the way, also see the following article by well known Supreme Court expert and law professor Edward Lazarus:

    http://writ.news.findlaw.com/lazarus/20040205.html

    Thomas (c2729e)

  16. That’s okay. I have read him before and can predict what he would say — just like I could predict what Dowd would say.

    In light of the rulings last term, I’d say there’s a lot more work to be done before the fix is truly in.

    Patterico (f7b3e5)

  17. As in, a Republican takeover of the Senate so that they can confirm one more justice? 😉

    Thomas (c2729e)

  18. Oh, and here is yet another op-ed — this one a cartoon — from Tony Auth.

    http://images.ucomics.com/comics/ta/2004/ta040321.gif

    The image here is right on the mark. If Scalia stubborly refused to acknowledge this blatant conflict of interest, he will destroy any remaining faith the American public might have had in the impartiality or ethics of the Court.

    I will admit that he destroyed mine during Bush v. Gore. And I voted for Bush.

    Thomas (c2729e)

  19. Wasn’t Scalia’s son a lawyer acting as part of the trial team in Bush v Gore?

    And for that matter wasn’t Thmas’ wife putting together CVs for the next Bush administration?

    Aren’t they both members of Opus Dei?

    Sufficient grounds for recusal of both Thomas and Scalia don’t you think?

    FRAN

    Fran Barlow (46ff48)

  20. February Link Love
    February, the month of love … St. Valentine’s Day, Cupid, and the like … and so it’s time to spread the link-love around the blogosphere a bit. The Commissar has discovered a new initiative from the Left: a deck of

    Captain's Quarters (af7df9)


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