Duck-Blind Justice: Justice Scalia's Memorandum in the Cheney Case

Georgetown Journal of Legal Ethics, The, Fall 2004 by Freedman, Monroe H

A dramatic and controversial case of judicial disqualification is Justice Antonin Scalia's denial of a motion that he recuse himself in Cheney v. U.S. District Court for the District of Columbia? The case relates to the National Energy Policy Development Group ("Energy Group"), created by President Bush to establish a national energy policy, and chaired by Vice President Richard B. Cheney.

The Sierra Club and others allege that unidentified industry representatives participated as de facto members of the Energy Group, and the plaintiffs seek to compel disclosure of the identities of the industry members.2 Cheney, however, has denied that anyone other than government employees participated in the group as members or as de facto members.3 As stated by the Justice Department, representing Cheney, the first issue before the Supreme Court relates to the allegation that the Energy Group had not truthfully reported who its members were.4

The basis for the recusal motion under the federal disqualification statute, § 455(a),5 was that while the case was pending before the Supreme Court, Scalia and Cheney, who are old and close friends, went on a duck-hunting trip together.6 In a twenty-one page Memorandum Opinion, Scalia denied the motion.7 The opinion is both disappointing and disingenuous.

The applicable federal law is clear. The federal disqualification statute expressly applies to Supreme Court justices.8 It requires disqualification whenever a justice's impartiality "might" reasonably be "questioned," and the Supreme Court has interpreted that language broadly to avoid "suspicions and doubts" about the integrity of judges.9

The close and long-standing friendship between Scalia and Cheney might cause a reasonable person to question Scalia's impartiality in a case of such importance to Cheney, especially in a presidential election year in which energy and environmental issues are being debated.

In addition, a situation that is universally recognized as relevant to a judge's impartiality is the acceptance of something of value from a litigant. For example, in 2002, Justice Scalia recused himself in Kahvedzic v. Republic of Croatia.^0 Just before that case had come before the Supreme Court, Justice Scalia had been reimbursed by Croatia for a trip to meet Croatian judges in Zagreb.11

Another situation that is universally recognized as relating to a judge's impartiality is ex parte communications. For example, like every other code of judicial conduct, the Code of Conduct for United States Judges says that a judge shall "neither initiate nor consider ex parte communications on the merits, or procedures affecting the merits, of a pending or impending proceeding."12 Although the Code applies to all federal judges except Supreme Court justices, Scalia makes it clear in his opinion that he is well aware of the relevance of that issue to his own disqualification under § 455(a).13

A justice's close friendship with a litigant, his acceptance of something of value from a litigant, and the potential for ex parte communications with a litigant, are all implicated in Scalia's duck-hunting trip with Cheney.

First, the facts. Scalia is caustic about errors that have been made in the recusal motion and in news reports and editorials relating to the trip14-errors that could have been avoided if Scalia had been forthright at the outset.15 There is nothing new in Scalia's recitation of the facts, however, that is material to the motion for his disqualification. Indeed, one error Scalia points to is that it was not his daughter who accompanied him and the Vice President on Air Force Two, but his son and his son-in-law-which means that the value of the flight to the Scalia family was 150% greater than had been stated in the recusai motion.

The friendship between Scalia and Cheney goes back over a quarter of a century. Scalia has been going on duck-hunting trips to Louisiana for about five years.16 Several months prior to the most recent trip, Scalia suggested to his host that Cheney be invited. Cheney accepted, "subject, of course, to any superseding demands on the Vice President's time."17 (While recognizing that later events might have interfered with the Vice President's trip, Scalia omits any reference to the possibility of superseding demands on his own responsibilities as a Justice.) Scalia acknowledges that he and Cheney were together for the flight, during a car ride, during a boat trip, and during all meals. He also acknowledges they might have walked alone together going to or from a boat, or going to and from dinner. There were thirteen guests in all, plus staff and security personnel.18

All of those facts can be taken at face value. Scalia adds, however, that he and Cheney did not talk to each other about the pending case. The truth of Scalia's statement is irrelevant to a recusai motion under § 455(a). That is, a denial of impropriety by the judge whose impartiality might reasonably be questioned is not sufficient to remove the question.