Why Justice Scalia Is Wrong To Refuse to Recuse Himself From a Case Involving Dick Cheney and His Energy Task Force

By EDWARD LAZARUS
Thursday, Feb. 05, 2004

The universe of Supreme Court watchers is atwitter -- but not over a controversial Court decision. The new controversy revolves, instead, around a Justice's refusal to recuse himself from hearing a case before the Court.

The Justice is Antonin Scalia, and the case is In re Richard B. Cheney. The case involves both Vice President Cheney and the participants in the Energy Task Force that Cheney ran, and that helped shape the Bush Administration's energy policy.

Specifically, the case asks whether Cheney must reveal the names of the participants in his task force as well as some task force records. Watchdog groups hope this information will confirm suspicions that the task force was stacked with Cheney's former cronies from the energy industry who used their insider status to shape Bush's pro-business, anti-environment energy policy.

This recusal should have been a no-brainer for Scalia -- due to facts that I will set forth below. Federal law requires federal judges, including Supreme Court justices, to recuse themselves "in any proceeding in which his [or her] impartiality might reasonably be questioned." Under the circumstances surrounding the Cheney case, this federal law all but compels Scalia to recuse himself.

Granted, there is no remedy when a Justice wrongfully refuses to recuse himself when it is plainly appropriate. But Scalia's decision is wrong nonetheless. Indeed, the fact that it involves the abuse of unchecked, unreviewable discretion only makes it all the more egregious.

The Facts Relating to the Recusal Controversy

The undisputed facts are these:

Cheney sought Supreme Court review of the lower court decision, which would have required him to product the documents the watchdog groups sought. While the Court was considering whether to grant the petition, Scalia dined with Cheney (and Defense Secretary Donald Rumsfeld) at a posh spot out on Maryland's Eastern Shore.

On December 15, 2003, the Supreme Court granted review in the Cheney case. Then, three weeks later, Scalia went on a very exclusive, 9-person, 5-day duck hunting trip with Cheney to a remote part of southern Louisiana. Both Scalia and Cheney were guests of the head of Diamond Services Corp, an oil services company, which ferried Scalia to the hunting grounds on its Gulfstream jet.

Given The Facts, It's Reasonable to Question Scalia's Impartiality

Is it "reasonable" to question Scalia's impartiality under these circumstances? Certainly many editorialists, and some Democratic Senators (with their own political motivations, of course) say yes.

Scalia, however, says no. According to the Justice, "social contacts with high-level executive officials (including cabinet officials) have never been thought improper for judges who may have before them cases in which those people are involved in their official capacities, as opposed to their personal capacities."

In Scalia's view, his duck hunting trip was no different than the common practice of justices attending White House dinners - and, thus, he has declined to step off Cheney's case.

Why Scalia's Justification For Not Recusing Himself Is Weak At Best

Scalia's response wilts pretty quickly on reflection -- for several reasons.

First, an intimate, five-day duck hunting trip to the wilds of Louisiana is simply not the same as a White House dinner, or even a shared poker game or any other routine social occasion. Such trips are powerful bonding experiences (a particular species of male bonding, in this case) that are designed to form deep personal friendships.

Surely it is "reasonable" for someone to think that this kind of prolonged and intense shared experience might affect the impartiality of a justice in a way that attending a dinner party (or other like events) would not. And if that view is reasonable, then Scalia, by law, should recuse himself.

Second, Scalia's claim that the case before him involves Cheney only in his "official" (not his personal) capacity is a considerable overstatement. At issue in the underlying case is Cheney's personal conduct as head of the energy task force. He stands accused of violating the federal law governing how such groups must be administered.

Cheney's actions with respect to the Energy Task Force were actions of the man -- not actions of the Office of the Vice President. Cheney is being sued on the theory that he personally allowed cronyism to directly affect his decisionmaking -- and then tried to keep his corruption secret. Policy is official; vice, however, is personal.

Third, and even more important, the case has obvious implications for Cheney's personal political fortunes. Democratic allegations of Cheney cronyism - both in the forming of energy policy, and in the Halliburton contracts to rebuild Iraq - are sure to be campaign issues this fall. And if the Supreme Court forces Cheney to divulge the workings of his task force (including Cheney's interactions with Enron's Kenneth Lay), the Democrats are likely to gain much more grist for that mill. Indeed, sufficient controversy over Cheney might conceivably (though it is a remote possibility) cause President Bush to choose a different Vice President -- with Cheney resigning, purportedly over his recurrent health issues.

This Time, It's Personal: Why Cheney's Is Not An "Official Capacity Case"

It is true, as Scalia's response to the duck-hunting flap implies, that there are many cases in which cabinet secretaries are named as parties not because of any personal conduct, but merely (for technical legal reasons) in their official capacities as head of a government agency.

But In re Cheney is not such a case. Here, the conduct at issue - withholding the make-up and files of Cheney's handpicked task force - is personal to the Vice-President. And it is his personal choices for the task force that are being challenged as unlawful - not some nameless, faceless agency policy, as in the ordinary cases where cabinet secretaries are sued by name.

Moreover, the potential political fallout of the case is also personal to Cheney in a way that simply does not have a parallel in the routine cases. As noted above, it could affect his joint campaign with President Bush -- and could even, in a very unlikely but nevertheless possible worst case scenario, lead to his loss of the Vice Presidency.

Scalia's Failure to Recuse Contributes to Suspicion of Government

We live in suspicious times. A good portion of the country thinks that the five conservative justices on the Court, Scalia included, handed George W. Bush the presidency for purely partisan reasons and with no constitutional warrant whatsoever. And those five justices gave credence to this view by writing a transparently inadequate opinion to justify their ruling.

Now one of those same justices has closeted himself away for five days with the Vice-President he helped put in office -- while, at the same time, he is presiding over a case that may have a non-trivial impact on whether that Vice-President gets another term.

Even worse, we have Scalia and Cheney being hosted by an energy baron while Scalia sits on a case that, at bottom, charges the Vice-President with being too cozy with the energy industry. And then we have Scalia refusing to step off the Cheney case while spouting a justification that hardly befits someone of Scalia's undeniable intelligence.

All this adds more poison to the already toxic environment surrounding our governmental institutions.

The Appearance of Corruption Is, and Should Be, Legally Sufficient For Recusal

On a regular basis, in client meetings or when I give public speeches about the Court, people ask me whether the justices get lobbied, as elected politicians in the other branches of government do. They want to know about the secret backchannels by which powerful interests influence the Court.

As someone with a pretty jaundiced view of the modern Court, it always gives me pleasure to tell these folks that there really is no backchannel lobbying at the Court, and no influence peddling -- just legal briefs and oral arguments accessible to the public. But in the last two weeks, more than a few a these people have fired back, "Yeah, sure. Don't be so naïve. Just look at Scalia and Cheney."

I find it impossible to believe that Justice Scalia is consciously staying on the Cheney case in order to help out his close friend. That remains a form of corruption alien to the Court.

But Scalia is simply blind to reality if he really thinks -- given the extraordinary suspicions that ordinary people have about our institutions of government -- that "reasonable" people don't harbor this view. And he is equally blind if he feels that his backwoods adventure with his VP buddy does not give rise to at least the appearance of potential bias.

Once it's clear that reasonable people are suspicious, and that the appearance of bias persists, that should be the end of the analysis. Generally, the Justices take the view of "When in doubt, recuse," and they are right to do so. Ironically, they even may, at times, tend to go overboard in recusing themselves from cases that might involve even the appearance of partiality.

For instance, Justices step off cases if they own stock in companies that are parties, as though justices might be influenced by the prospect of making a few dollars with the fluctuation of a stock's price.

Or, to take another example, last year Justice John Paul Stevens gave serious consideration to recusing himself from the Michigan affirmative action cases because the outgoing Dean of the University of Michigan Law School had clerked for Stevens 20 years earlier. (Fortunately, the other justices prevailed on Stevens not to recuse himself.)

Compare Stevens's conscientiously pondering the import of his connection with that long-ago clerk to Scalia's cavalierly refusing to acknowledge the import of his recent duck hunting trip with a party to a case before him. Stevens simply puts Scalia to shame on this score.

Particularly in light of the Justices' tradition of liberally recusing themselves from cases in which their impartiality might be questioned, Scalia is suffering from a profound case of denial in remaining on Cheney's case. Fortunately, there is still time for him to change his mind. If he did so, not only would he very publicly reaffirm the Court's integrity, but he would also show that individual Justices, even headstrong ones like Scalia, are open-minded enough to change their minds when it is warranted.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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