Scalia's Refusal to Recuse:
Why His Lengthy Explanation Is Completely Unconvincing, And Why Bush v. Gore Provides Even More Reason to Recuse

By EDWARD LAZARUS
Thursday, Apr. 01, 2004

Justice Antonin Scalia's decision not to recuse himself from the pending Supreme Court case involving Vice-President Dick Cheney -- notwithstanding their joint duck-hunting trip to Louisiana -- still troubles many. And perhaps for this reason, Scalia has offered an unprecedented 20-page explanatory statement to justify his refusal to recuse.

Scalia's lengthy statement is extraordinarily revealing -- but it does not reveal, as Scalia must have hoped, that his decision is more justified that it at first appeared. Instead, the statement reveals a justice who -- though famously adept at legal argument -- is, in this instance, too clever by half, stretching points far beyond plausibility.

The statement also reveals a justice who exhibits a troubling capacity for sliding over inconvenient facts. And, finally, it reveals a justice who betrays a stunning arrogance about the Court itself and the role it has recently played in the nation's political affairs.

Scalia's First Point: The Duck Hunt Was A Routine Social Interaction

First, Scalia claims that the duck-hunting trip was akin to the kind of social interactions, such as White House dinners, that are historically routine between at least some justices and high-ranking members of the Executive Branch. In support of his argument, he points out that, on the trip, he and the Vice-President did not share a duck blind or spend other substantial private time together.

Scalia is, of course, correct that as a historical matter, a number of justices have indeed socialized with Executive branch officials. Moreover, on at least a few occasions, they have even done so while cases important to the Executive branch have been pending.

But the existence of this "precedent" begs the question: Is this a precedent worth following? Certainly, Scalia is happy to ask that about other precedents -- say, Roe v. Wade. And he should have posed the question here, for the answer is far from self-evident.

But even if the precedent itself should stand, Scalia is stretching it to its limit. In the past, justices have sometimes attended White House functions and a few have played poker and the like with presidents and other high-ranking officials. But the Scalia/Cheney duck-hunting trip takes these questionable practices to a new level.

Scalia's Second Point: No Improper Gratuity Was Given

Second, Scalia points out that his decision to accept the Cheney's invitation to travel to the duck hunting trip (accompanied by two family members) on the Vice-President's government plane was not an improper gratuity. He also points out that the plane trip gave him no economic benefit because he bought round-trip airline tickets anyway.

Of course, the Justice is within his rights to correct newspaper accounts that were factually inaccurate on this score. But the real facts are hardly appealing.

As Findlaw contributor and Yale law professor Ian Ayres has noted elsewhere, Scalia likely defrauded the airline from which he did buy a ticket. Airline policy generally prohibits customers from taking advantage of the round-trip discount when they only intend (as Scalia did) to travel one-way.

Granted, this policy is probably honored in the breach by many. But Scalia, who holds parties -- including death penalty defendants -- to the letter of the law, ought at least to abide by it himself! If he argues the airline should look the other way, he is holding himself to a far lesser standard than he applies to others.

Finally, the fact that he didn't ride on Cheney's private plane to save money hardly provides that he got no benefit from the trip.

The cachet, the pomp and circumstance, the extra convenience of a private plane, and the propinquity to the high and mighty -- they, too, play a psychological role. And recusal is about psychology: Can someone be truly unbiased toward a party who just took him and two family members for a ride on his own private plane?

It's not that Scalia saved a few hundred bucks, not a huge sum for him. It's that he was invited into the seat of Executive power, and no doubt relished the trip for both himself and his family.

Scalia's Third Point: This Is An "Official Capacity," Not a "Personal Capacity" Case

Third, Justice Scalia points out that the case before the Court -- which involves Cheney's refusal to release information about his Energy Policy Task Force -- involves Cheney only in his official capacity, not his personal capacity. And technically, of course, this is true.

But this is hardly the run-of-the-mill official capacity suit. Often, agency heads are named in their official capacity due to positions taken by their staff -- the naming is a mere formality, a way to draft a complaint. That's not true here.

This lawsuit involves what apparently was Cheney's personal decision to involve outsiders in the Task Force's meetings. Especially when juxtaposed with the Administration's decision to hire Cheney's former company, Halliburton, for Iraq rebuilding, this decision is going to be controversial -- not just as a policy matter, but as a personal choice by Cheney.

Did Cheney involve his cronies in these meetings? If he did, was there a quid pro quo -- or simply favoritism on Cheney's part?

Scalia's Fourth Point: Newspaper Editorials Ought Not Determine Recusal Decisions

Fourth, Scalia argues that it would be wrong to recuse himself just because many newspaper editorialists, based on partially inaccurate information, call on him to do so.

Scalia is surely right that newspaper editorials cannot serve as a sound basis for determining whether a justice's recusal is called for. But he ignores a more basic point: The reason so many editorialists have been upset about Scalia's decision is that it was upsetting. And it was upsetting because it had the appearance of actuality of impropriety -- the very reason recusal is warranted!

Blindly kowtowing to public opinion is never wise -- especially for a Supreme Court Justice. But the backlash here was reasoned, and reasonable. We're not hearing from editorialists who think the duck hunt justifies recusal because it violated animal rights. We're hearing from editorialists who think it justified recusal because it violated judicial propriety.

Of course, a thousand editorialists -- like the proverbial million Frenchmen -- can indeed be wrong. But they can also be correct. Certainly, this reasoned outcry doesn't help Scalia's defense of his decision.

Sticking to one's guns is not always wise -- especially when one chose the wrong gun to stick to, and everyone and his brother is pointing that out. Public opinion should not prompt recusal, in itself. But the reasons behind it sometimes should -- and Justices should not willfully thwart it, just for the purpose of thwarting it.

Surely, at a minimum, the unique breadth and depth of public reaction to Scalia's trip -- including an apparently unprecedented inquiry to the Court from Congress -- are important indicia of whether a reasonable person might be troubled by Scalia's continued participation in the Cheney case.

Scalia's Fifth Point: Recusal Would Actually Undermine Public Confidence in the Court

Fifth, Scalia claims recusal would be wrong because "the people must have confidence in the integrity of the Justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor."

This is Alice-in-Wonderland logic. The people's confidence is not an inalienable right bestowed upon the Court either by the Constitution or the creator. That confidence is a matter to be earned by every public official, but especially unelected life-tenured judges who are generally unaccountable to the public. Sometimes this unaccountability protects integrity. But sometimes, it invites bad behavior.

If a parent complained about the way a tenured male teacher often put an arm around his teenage daughter, would a reasonable response on the teacher's part be, "Well, parents have to trust tenured teachers, don't they?"

Of course, we all have to trust others until we have reason not to. But, regrettably, Scalia -- like the overly "affectionate" teacher -- has given us reason not to.

Bush v. Gore Provides Yet Another Reason Scalia Should Have Quickly Recused Himself

Remember Bush v. Gore? Scalia was the most vocal member of a narrow five-justice majority that not only handed Bush the presidency, but also handed Cheney the Vice-presidency.

Worse still, the Court, including Scalia, committed this extraordinary act on the basis of a legal opinion that was so transparently devoid of logic and so contrary to the usual views of the justices who propounded the opinion, that it could be reasonably be viewed as an act of naked political partisanship.

In light of that fact, shouldn't he be extra-careful to avoid any appearance of a personal connection -- indeed, a duck-hunting friendship -- with Cheney? After all, in the eyes of about half the American electorate, the justices, and Scalia in particular, have already squandered the public's confidence in their impartiality. Scalia seems oblivious to this reaction or perhaps deems it unreasonable.

But, whether or not it is ultimately correct -- and reasonable minds can differ on that point -- it is not unreasonable. The five-justice majority took the unprecedented step of stopping an election and, without offering a single compelling reason, handing the presidency to a politically likeminded candidate.

Imagine now, that in the upcoming case, Scalia does cast the decisive fifth vote for Cheney. Reasonable people will see it as a Bush v. Gore-like decision. And the Court's credibility will be even further damaged.

The "least dangerous branch" cannot afford that -- without the Executive's guns, or Congress's power of the purse, its power simply is its integrity. When its integrity is questioned, the Court's power decreases, and our government's basic structure is imperiled. Scalia may brush off objections to his decisions, but the stakes really are this grave.

In the end, unless one is going to entertain the fiction, many times proven false through history, that the justices are by definition above politics, then a suspicion that Bush v. Gore reflects political bias is certainly, at a minimum, reasonable.

Against this background, Scalia's twenty-page justification is simply insufficient -- and in the end, irrelevant. In the entire history of the Court, no justice has ever vacationed with a Vice-President whom he put in office, during the pendency of the very case that might help oust that Vice-president from office.

It is this unique set of circumstances that has set off the newspaper editorialists. And it is this unique set of circumstances that creates, in the minds of countless reasonable people, an appearance of bias requiring recusal.

In the best of times, Scalia's decision might be a questionable close call. In the worst of times, which are the times in which we live, the decision to recuse should be an easy call. The most condemning fact is that for Scalia, it seems actually to have been an easy call the other way.


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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