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Scalia Sees No Reason to Sit Out Cheney Case

In a 21-page opinion, the justice says social contacts such as a hunting trip do not pose conflicts and 'ought not to be' abandoned.

March 19, 2004|David G. Savage and Richard A. Serrano | Times Staff Writers

WASHINGTON — Supreme Court Justice Antonin Scalia declared Thursday that he would not withdraw from a case that challenged the secrecy surrounding Vice President Dick Cheney's energy policy task force, saying that their recent duck-hunting trip to south Louisiana would not cause a reasonable person to question his impartiality.

Scalia confirmed that he flew with Cheney from Washington to Louisiana on a small jet that served as Air Force Two, and said they were joined by the justice's son and son-in-law. However, their social interaction was limited, he said.

"The vice president and I were never in the same [duck] blind, and never discussed the case," he wrote in a 21-page opinion.

He added that the "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."

"If 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," he wrote.

The Supreme Court is hearing a Sierra Club lawsuit challenging Cheney's refusal to reveal whether energy industry lobbyists met privately with his energy task force.

Two lower courts had ordered the vice president to turn over documents that would show who met with the task force. Administration lawyers in September appealed the matter to the Supreme Court, arguing that the ruling infringed on the powers of the vice president.

The appeal came before the court in late November, and the justices voted in mid-December to take up the case. On Jan. 5, Cheney and Scalia took their duck-hunting trip. After the Los Angeles Times disclosed the trip, the Sierra Club urged Scalia to withdraw from the case.

Doing so is necessary to avoid "an appearance of impropriety and to restore public confidence in the integrity of our nation's highest court," lawyers for the environmental group said.

They pointed to a federal law enacted in 1974 which said "a justice [or] judge ... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Under that law, challengers need not prove a judge is biased. Instead, they need only point out evidence that would cause a reasonable person to think the judge might not be impartial.

In rejecting their motion Thursday, Scalia disputed that the case of "Richard B. Cheney vs. U.S. District Court" was of a special importance to Cheney.

Contrary to what has been said, "this is a 'run-of-the-mill legal dispute about an administrative decision,' " Scalia wrote. "To be sure, there could be political consequences from the disclosure 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. But political consequences are not my concern."

The Sierra Club said it was not satisfied by Thursday's response.

"Justice Scalia misses the point," the group said in a statement. "There's a problem when a justice and a litigant meet secretly at a private hunting retreat -- regardless of what happens behind closed doors. It is the appearance of secrecy and impropriety that creates the problem."

However, the group's lawyers said they would not ask the full court to review Scalia's decision. "We're not going to push any further. There's no way the full court will take this thing on," said David Bookbinder, the group's legal director in Washington.

Chief Justice William H. Rehnquist said recently that the court's policy was that individual justices must decide for themselves whether to step aside in a pending case. Justice Ruth Bader Ginsburg voiced the same view last week.

Two legal experts who have closely followed the duck-hunting controversy praised Scalia for writing a thorough and strong defense of his actions. However, both said they continued to disagree with his decision.

Scalia "is a really good lawyer," New York University law professor Stephen Gillers said. "He redefines the question while avoiding the central issue. This is not just about a friend who is a party to a case in his official capacity. And it is not a mere social event. Cheney has a substantial personal and political interest in the outcome of this case. This is about Cheney's conduct, and it comes in a year he is running for reelection."

Gillers said he also was troubled that Scalia had made himself the sole arbiter of his actions. "This is the law, and he [Scalia] is not above it," Gillers said.

Agreeing, Northwestern University law professor Steven Lubet said the 1974 law does not envision that a single judge will decide for himself whether his impartiality may be in doubt. "He is supposed to disqualify himself if there is a reasonable question," Lubet said. "And he is not supposed to answer it alone. It would be better if the answer came from the full court."

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