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?