Topic: Professions & Institutions

Scalia's Argument Against Recusal
(3/19/2004)

"He was right, dead right, as he sped along; and he's just as dead as if he were wrong."

-From the inscription on William Jay's gravestone

More about William Jay shortly.

Justice Scalia has now responded formally to calls for his voluntary recusal in the lawsuit claiming that a government committee headed by Vice President Cheney failed to comply with the Federal Advisory Committee Act. In a memorandum spurred by a motion by the Sierra club demanding his recusal, Scalia goes into considerable detail regarding the particulars of his hunting trip (which included the Vice President) that has called his impartiality into question. He also argues persuasively and well to support his contention that a withdrawal from consideration of the case is unwarranted and unsupported by precedent.

Those who (like Ethics Scoreboard) have criticized Scalia for his stance on this controversy have an obligation to read the Justice's memorandum. They are sure to learn some things, such as why it is unwise to trust media accounts regarding anything more complicated than your typical Sponge Bob Square Pants episode; what constitutes a legally persuasive argument and why even Scalia's ideological foes admire his sharp intellect and lively writing.

Among the interesting facts and arguments presented by the Justice:

  • Scalia has been going on the same Louisiana duck hunting trip, without Cheney, for five years.
  • Scalia, learning that the VP was also a duck hunter and not divining that a case involving the Veep was destined to end up before the Court, suggested to his long-time friend and host that he invite Cheney. Cheney, once he accepted, asked if Scalia and his usual hunting partner, his son in law, wanted to fly down to Louisiana on Air Force Two, since Cheney was required by law to use a government plane.

  • No extra cost was incurred by the government, because the flight had to take place whether Scalia hitched a ride or not. Scalia, meanwhile, gained no monetary benefit, because he had to purchase a round trip ticket to get the most economical price for his return commercial flight.

  • There were 13 hunters in all, plus assorted staff and security personnel. Accounts of Cheney and Scalia huddled together in an intimate duck blind were fanciful.

  • Cheney and Scalia were never alone together except for fleeting moments, and they absolutely did not discuss the case.

  • Scalia makes a strong case against the contention by the Sierra Club that he should "resolve ant doubts in favor of recusal." He points out that while this might be a good standard on a Court of Appeals, where a substitute judge would be appointed to step in for the withdrawing judge, on the Supreme Court a recusal threatens to distort a decision because it reduces the panel from nine to eight, making a 4-4 deadlock possible.

  • The memorandum uses numerous historical examples to show that disqualifying Supreme Court justices whenever they had a social relationship with named litigants would "disable" the court, as well as to demonstrate the friendships with US officials have never been a reliable predictor of a justice's vote.

  • Cheney is named in the lawsuit in his official capacity as chairman of the energy taskforce being sued, not personally. Scalia disputes the argument that Cheney has any personal stake in the result "any more than the agency head's reputation or integrity is on the line in virtually all official action suits."

Scalia's strongest salvo is reserved for the Sierra Club's motion, which, he said, surprised him by citing no valid legal precedents for a Supreme Court justice's recusal under similar circumstances, but rather relying on the onslaught of newspaper editorials calling for recusal to show that the public has concluded "that there is an appearance of favoritism." He points to copious prejudicial factual errors and innuendos in the newspaper accounts, and notes that the editorials unanimously misstated the existing standards for recusal.

Ethics Scoreboard makes no pretense of being able to match Justice Scalia's intellect or knowledge of the law. And he makes one especially chilling point: is appearance of impropriety sufficient to force recusal when that appearance is a false illusion created by inaccurate reporting, sloppy analysis, and misinformed reading of the law? It looked like an easy call based on what appeared in the papers; Scalia's memorandum is a clarification that shows that his position is not just a product of stubbornness, but of careful scholarship. He wins the debate, hands down.

He should still recuse himself.

This is where William Jay comes in. Like poor Mr. Jay, Scalia is right: there is the potential here for more than one bad precedent, and justices should not permit themselves to be run out of deliberating on politically sensitive cases by partisan misinformation campaigns. But the damage is done. To most of the public, the raw circumstances of the Scalia-Cheney outing will call Scalia's impartiality into question, and because it is a high profile case, this will damage the public's faith in the Supreme Court. It isn't worth it. Americans, even Americans that don't comprehend the legal requirements of recusal, need to believe in the integrity of the Supreme Court.

Next, the Court should recognize the new political realities of its role, and devise a review system that would make the whole court the arbiter of whether one of the brethren has a conflict, or an unacceptable appearance of one. Such a system would have made Scalia's current dilemma less of a lightning rod for criticism.

For now, though, Justice Scalia needs to face facts: he may be right on the law, but he's a dead man walking.

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