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SCALIA'S EXPLANATION FOR RECUSAL REFUSAL IS UNCONVINCING
Professor William G. Ross
Cumberland Law School, Samford University
Contributing Editor, JURIST Forum

United States Supreme Court Justice Antonin Scalia should be commended for writing an extraordinarily detailed memorandum explaining his reasons for refusing to recuse himself from a case in which his duck hunting partner, Vice President Richard Cheney, is a named party. The Sierra Club alleges in the litigation that energy industry officials were de facto members of the National Energy Policy Development Group (NEPDG), a federal energy task force chaired by Cheney, and that NEPDG痴 records and minutes therefore must be made public pursuant to the Federal Advisory Committee Act. The statutory basis for recusal is 28 U.S.C. sec. 455(a), which provides that any judge 都hall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. In his twenty-one page memo, Scalia explains why he has rejected the Sierra Club痴 motion that he recuse himself because he spent two days in Louisiana last January hunting ducks with a party that included Cheney. While Scalia痴 memorandum makes a number of provocative, useful, and legitimate arguments, it ultimately fails to comprehend the central reasons why recusal would be so appropriate in this case.

At the outset of his opinion, Scalia correctly states that 甜t]he decision whether a judge痴 impartiality can 喪easonably be questioned is to be made in light of the facts as they existed, and not as they were surmised or reported. Scalia explains that various newspapers erroneously reported that the hunting trip lasted several days, rather than 48 hours, and that Scalia and Cheney hunted in the same duck blind. He also explains that the Sierra Club痴 motion erroneously accused him of accepting a gift of free air transportation from Cheney. Although these and some of the facts as clarified by Scalia make the arguments for recusal less compelling than some media accounts suggested, the facts described by Scalia still raise reasonable questions about Scalia痴 impartiality. Moreover, Scalia has revealed information not apparently reported in the news media which makes questions about partiality even more pronounced than many news reports had suggested.

In particular, Scalia reveals that he suggested to his host at the duck hunt, Wallace Carline, that he invite Cheney to the hunt and that Scalia personally conveyed Carline痴 invitation to Cheney. Scalia therefore did not arbitrarily or accidentally come into contact with Cheney, but rather actively sought him out for inclusion in the expedition. Although Scalia explains that the trip was scheduled 斗ong before the Court granted certiorari in the present case, and indeed before the petition for certiorari had been filed, Scalia痴 enthusiasm for Cheney痴 participation suggests a closeness of relations between Scalia and Cheney that could raise questions about Scalia痴 impartiality in any case involving Cheney.

Even if one trusts Scalia痴 insistence that he did not discuss the case with Cheney (and I have no reason not to trust Scalia痴 assertion), one might reasonably question Scalia痴 impartiality. A justice may be influenced by his social connections even when he or she does not engage in ex parte communications with a litigant.

Although Cheney emphasizes that he was not biased, recusal is required when a judge痴 impartiality reasonably might be questioned even if the judge is not actually biased since, as the U.S. Supreme Court has explained, 甜t]he very purpose of [section] 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety. Liljeberg v. Health Services Acquisition Corp. (1980).

Perhaps Scalia痴 most startling and unconvincing statement is his assertion that the hunting expedition 努as not an intimate setting. Scalia bases this on the facts that he did not sleep in the same room with Cheney or hunt in the same duck blind and was not 殿lone with him at any time during the trip, except, perhaps, for instances so brief and unintentional that I would not recall them walking to or from a boat, perhaps, or going to or from dinner. Although 訴ntimacy may be defined in many ways, a reasonable observer certainly could conclude that the expedition, as described by Scalia himself, was quite intimate. Flying to Louisiana on Cheney痴 own aircraft in the company of only Cheney and three other guests and spending two days in a highly communal setting with only twelve other men (in addition to three members of Carline痴 staff and members of Cheney痴 staff and security detail) certainly seems 妬ntimate to many persons who have urged Scalia痴 recusal.

By explaining that he purchased round-trip tickets for the trip to and from Louisiana, Scalia effectively refutes any argument that he received an illicit gift by accepting Cheney痴 offer of a flight to Louisiana. But while Scalia has proved that there was no financial favor, he fails to consider that riding with the Vice President in very small group is a social favor. As New York University Law Professor Stephen Gillers has pointed out, 甜w]e would all like to pay coach and fly on Air Force Two. It is simply disingenuous to say that this is about money. It is about luxury and status. He got those things from a litigant with a case before the court. While Scalia痴 ride was legal, it bolsters the argument for recusal.

Although Scalia asserts that 甜m]embers of Congress and others are frequently invited to accompany Executive Branch officials on Government planes, where space is available, he can hardly be unaware that involvement by Supreme Court justices with executive branch officials is potentially more harmful to separation of powers than is interaction between members of Congress and the executive branch. Supreme Court justices, unlike members of Congress, need to maintain a particular impartiality in order to decide lawsuits fairly and objectively. Likewise, as the ultimate guardians of the nation痴 legal system, they generally are expected to maintain and generally have maintained -- higher standards of integrity and decorum than members of Congress. The need for a high level of confidence in the probity of judges finds expression not only in the recusal statute, but also in the American Bar Association痴 Model Code of Judicial Conduct, which provides that a judge must avoid not only impropriety, but also the appearance of impropriety in all of the judge痴 activities.

Scalia also bases his refusal to recuse himself largely on the basis that Cheney was only a nominal party to the litigation. According to Scalia, the Sierra Club痴 real grievance was with the actions of the committee that Cheney chaired rather than with Cheney himself; that 殿s far as the legal issues immediately presented to me are concerned, this is a run-of-the mill legal dispute about an administrative decision (emphasis in original); and that 甜n]othing this Court says on those subjects will have any bearing upon the reputation and integrity of Richard Cheney. On the other hand, Scalia admits that 鍍here could be political consequences from disclosures of the fact (if it be so) that the Vice President favored business interests, and especially a sector of business with which he was formerly connected. This, of course, is precisely why so many observers of the case believe that Cheney has a significant political stake in the case even though he is technically only a nominal party. Although Scalia states that the possibility of political fallout 兎xists to a greater or lesser extent in virtually all suits involving agency action, he fails to consider that cases involving a 堵reater extent, which is how many observers view the Cheney case, provide a correspondingly greater argument for recusal.

Defining the key issue as 努hether someone who thought that I could decide this case impartially despite my friendship with the Vice President would reasonably believe that I cannot decide it impartially because I went hunting with that friend and accepted an invitation to fly there with him on a Government plane (emphasis in original), Scalia concludes that 甜i]f it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined. This statement, however, could create confusion about the recusal statute, which requires only that a judge痴 妬mpartiality might reasonably be questioned, rather than that one might reasonably conclude that a judge cannot decide a case impartially or would not decide it impartially.

In his defense, Scalia also cited numerous examples of social interaction between Justices and Presidents, including Harlan Fiske Stone痴 杜edicine ball games with Herbert Hoover, Justice John Marshall Harlan I痴 Sunday evening White House hymn-singing with the Hayes family, and William O. Douglas痴 poker games with Franklin D. Roosevelt. These examples not only are unconvincing, but they actually undermine Scalia痴 position. Scalia痴 examples are all more than fifty years old and date from a time when prevailing sensitivities about judicial ethics were not so acute.

Although Scalia argues that a 渡o-friends rule would have disqualified much of the Court in Youngstown Sheet and Tube Co. v. Sawyer since 甜m]ost of the Justices knew Truman well, such disqualification might have been appropriate, for Youngstown frequently is cited as an object lesson in the dangers of social interaction between Justices and Presidents. All three of the dissenters, who argued that Truman had constitutional authority to seize the steel mills in wartime despite explicit congressional disapproval of such action, were close friends and appointees of Truman, including Chief Justice Vinson, a frequent poker buddy who also accompanied Truman to ball games. Constitutional scholars generally agree that these dissents rested on quite weak grounds and that they may be explained in no small part by the dissenters personal relationships with Truman.

Similarly inapt is Scalia痴 assertion that a 渡o-friends rule would have required Justice Holmes痴 recusal in Northern Securities Co. v. United States, in which Holmes infuriated Theodore Roosevelt by voting against his Administration痴 effort to bust a railroad trust, since Holmes and his wife Fanny were frequent dinner guests at the White House. Although Holmes痴 refusal to permit his friendship with Roosevelt to alter his vote supports Scalia痴 position to the extent that it demonstrates that Justices presumably will have the integrity to transcend the influence of social relationships, this famous incident also demonstrates the perils of close contacts between Presidents and Justices. Even though few presidents have been generally more sensitive to judicial independence, Roosevelt was so piqued that he distanced himself for a long while from Holmes, who was unfazed by the diminution of White House invitations. Even if Justices are able to transcend the temptation to permit social contacts to influence their decisions, the Holmes incident recalls why Justices should avoid such temptations in the first place.

Scalia also refers to two instances in which Justices did not recuse themselves from cases in which high government officials with whom they had close social contacts had a significant concern. As Scalia points out, Byron White did not recuse himself from two 1963 deportation cases in which Attorney General Robert Kennedy was a party or from a major 1963 reapportionment case, Gray v. Sanders, even though White had gone on a Colorado skiing vacation with Kennedy early in 1963. Even though Scalia correctly states that White痴 participation in the cases did precipitate any adverse comment, that does not justify White痴 questionable judgment in failing to recuse himself, particularly in the reapportionment case, which had profound political consequences.

Even more unconvincingly, Scalia refers to Justice Robert Jackson痴 weekend house party with Franklin Roosevelt in 1942, when Wickard v. Filburn was pending. Although Scalia correctly states that Wickard, in which the Court offered an expansive interpretation of interstate commerce, was very important to Roosevelt, the case involved Roosevelt much less directly than the Sierra Club痴 case involves Cheney. Although Jackson, like White, was not the subject of any recusal requests, such close contacts between a President and a Justice would be less acceptable today.

As Scalia points out, many Justices have been personal friends with the Presidents by whom they were appointed. Indeed, in most of these instances, the Justices owed their appointment to such friendships. Fortunately, however, cronyism has long since disappeared as a factor in U.S. Supreme Court nominations. Not since Johnson nominated Abe Fortas in 1965 has a President placed a close friend or advisor on the Court. Scholars and commentators generally agree that this demise of cronyism is a salutary development. Scalia痴 attempt to excuse his recusal refusal on the grounds that Justices and Presidents have been friends fails to recognize such changes in attitudes. Although Scalia acknowledges that changing times may have made it improper for Justices to serve as presidential advisors, a practice that has not occurred since Fortas worked closely with Lyndon Johnson, he declares that 鍍he well-known and constant practice of Justices enjoying friendship and social intercourse with Members of Congress and officers of the Executive Branch has not been abandoned, and ought not to be (emphasis in original).

Of course, Scalia is correct to suggest that it is both natural and desirable for Supreme Court Justices to interact with other powerful figures in Washington. Since the Court痴 decisions have such broad impact on so many aspects of American society, Justices should not isolate themselves in the Marble Palace and should remain in touch with many worlds, including politics, popular culture, economics, religion, and education. No one is arguing that Scalia needs to turn and run away when he sees Cheney at a reception or should drape his face with a napkin when he is seated next to him at a dinner. Most proponents of recusal do not contend that Scalia should recuse himself merely because he knows Cheney or has shared pleasant social contacts with him. It is the quantity and quality of those contacts that may require recusal. Scalia痴 reference to the regularity with which Justices accept invitations to dine at the White House helps to illustrate this point. Most of these dinners involve far more persons than were present at the duck hunt, and even the most lavish White House dinners do not stretch out for forty-eight hours.

Scalia痴 assertion that a 途ule that required Members of this Court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling, is exaggerated at best. Even the most socially active Justices are not likely to encounter such cases on a regular basis, even though they might regularly encounter cases in which the official actions of acquaintances are at issue. Moreover, it is not the mere friendship between Cheney and Scalia that has led to calls for recusal but rather their close proximity for two days during the duck hunting trip.

Scalia ought to be particularly punctilious about avoiding contacts with President Bush and Vice President Cheney since Scalia cast the vote which placed them in office. Although Bush v. Gore does not appear to have diminished respect for the Court as significantly as was widely feared at first, many Americans believe that partisan predilections swayed the five 田onservative members who voted for Bush in that case. Whether these perceptions are correct or not is beside the point. Even those who believe that the Court decided Bush v. Gore strictly on objective legal principles must admit that the Court divided along a line that mirrored that political leanings of the Justices and that this has made the Court vulnerable to allegations of partisanship. Since public confidence in the Court痴 impartiality is critically important to maintenance of faith in government and the rule of law, it seems axiomatic that all of the Justices who voted for Bush in Bush v. Gore would approach any personal relations with Bush or Cheney with the greatest delicacy, making special effort to avoid giving any credence to allegations that Bush v. Gore was a political decision.

Another contextual reason why this case has attracted so much attention is because it strikes a chord among citizens who are increasingly concerned about the cozy relationships between government officials and large business interests. This is the underlying issue in the Sierra Club痴 litigation and it explains why Scalia痴 two days in close quarters with a Vice President and other persons who have close contacts with the energy industry has led some persons to question his impartiality. While there is nothing illegal or unethical about social contacts between Justices and leaders of business or any other honest enterprises, countless commentators have pointed out throughout the nation痴 history that judges naturally tend to imbibe the political and economic predilections of the persons with whom they associate. As Nebraska Senator George W. Norris alleged in 1922 in criticizing the corpulent Chief Justice William Howard Taft for accepting so many dinner invitations and so often ruling against labor unions and the poor, there is not 殿ny man who can stick his legs under the tables of the idle rich every night and be fit the next day to sit in judgment on those who toil. Since ideology often 紡nd legitimately -- influences the decisions of Supreme Court Justices, the company that Justices keep is important. While it would be presumptuous for anyone to advise Scalia about how to choose his friends, Scalia痴 association with persons like Cheney naturally aggravates critics of the Rehnquist Court who believe that it is insufficiently sensitive to consumers, the poor, and environmental issues.

In another part of his memorandum, Scalia makes the reasonable argument that Justices should recuse themselves only for good cause since a recusal creates the risk of a four-to-four split, therefore preventing the Court from deciding an issue, and that his recusal would have the effect of giving another vote to the petitioner since a majority of votes are needed to overturn the lower court痴 decision. Such legitimate considerations must, however, bow to the need for recusal in an appropriate case. Despite its disruptive effects, Justices frequently recuse themselves. Scalia has recused himself many times during his seventeen years on the Court.

In a 都lippery slope argument, Scalia also warns that his recusal would 兎ncourage so-called investigative journalists to suggest improprieties, and demand recusals, for other inappropriate (and increasingly silly) reasons.尿lthough this is indeed a danger, Justices can approach such motions on a case-by-case basis as they arise. It is unlikely that frivolous recusal motions would attract the massive public support that the Sierra Club痴 motion has won.

Scalia argues that the 菟eople 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, and in an atmosphere where the press will be eager to find footfaults. Again, however, the recusal standard is not whether a reasonable observer would assume that a judge is corruptible, but whether an observer reasonably could question his impartiality. Moreover, the facts of the case indicate that the contacts between Cheney and Scalia went beyond 鍍he slightest friendship or favor. Many critics of Scalia痴 refusal to recuse himself aptly argue that the public 田onfidence in the integrity of the Justices would best be served by Scalia痴 recusal.

One of the reasons why Americans place so much confidence in the Supreme Court is because the Court is the only branch of government that no major scandal ever has shaken. Supreme Court Justices, including Scalia, consistently have adhered to standards of probity that too often have been lacking among Presidents, members of Congress, and state officials. By generating perhaps more unfavorable comment about the conduct of a Justice than any incident since Fortas was accused of conflicts of interest in 1969, Scalia痴 refusal to recuse himself in the Sierra Club case threatens to diminish public respect for the Court as an institution. The need to avoid diminution of public respect is particularly compelling in the wake of the controversy over Bush v. Gore. Since Scalia has committed no disreputable or illegal act, he could have prevented this imbroglio simply by recusing himself. Even now, he could dissolve much of the enmity it has generated if only he would withdraw from the case. Although at least some of Scalia痴 arguments against recusal are meritorious and there is no evidence that Scalia is actually biased, his memorandum ultimately is unconvincing in its attempts to demonstrate that recusal is not warranted.


William G. Ross is a professor at the Cumberland School of Law at Samford University. His courses include legal ethics and his publications include articles about judicial ethics.

March 22, 2004

CONTRIBUTING EDITOR

JURIST Forum Contributing Editor William G. Ross is a professor at the Cumberland School of Law of Samford University. Professor Ross practiced law in New York City for nine years before joining the Cumberland faculty in 1988. He is the author of two books about American constitutional history and a book about the ethics of time-based billing by attorneys. His numerous law review articles concern ethics, legal history, and the federal appointments process. Professor Ross graduated from Stanford in 1976 and the Harvard Law School in 1979.