Scalia-Cheney Trip Raises Eyebrows
High Court Justice, VP Go Hunting; Cheney Appeal Is Before The
Court
(CBS) Vice President Dick Cheney and Supreme Court Justice
Antonin Scalia spent part of last week duck hunting together
at a private camp in southern Louisiana, just three weeks
after the court agreed to take up the vice president's appeal
in lawsuits over his handling of the administration's energy
task force, the Los Angeles Times says in its Saturday
editions.
While Scalia and Cheney are avid hunters and longtime friends,
several experts in legal ethics questioned the timing of their
trip and said it raised doubts about Scalia's ability to judge
the case impartially, the newspaper pointed out.
But Scalia rejected that concern Friday, telling the Times,
"I do not think my impartiality could reasonably be
questioned."
Federal law says "any justice or judge shall disqualify
himself in any proceeding in which his impartiality might be
questioned," the Times notes.
For nearly three years, Cheney has been fighting demands that
he reveal whether he met with energy industry officials,
including Kenneth Lay when Lay was chairman of Enron, while
Cheney was formulating the president's energy policy, the
Times explains.
A lower court ruled that Cheney must turn over documents
detailing who met with his task force, but on Dec. 15, the
high court announced it would hear his appeal. The justices
are due to hear arguments in April in the case of "in re
Richard B. Cheney."
In a written response to an inquiry from the Times about the
hunting trip, Scalia said: "Cheney was indeed among the
party of about nine who hunted from the camp. Social contacts
with high-level executive officials (including cabinet
officers) have never been thought improper for judges who may
have before them cases in which those people are involved in
their official capacity, as opposed to their personal
capacity. For example, Supreme Court Justices are regularly
invited to dine at the White House, whether or not a suit
seeking to compel or prevent certain presidential action is
pending."
Cheney does not face a personal penalty in the pending
lawsuits. He could not be forced to pay damages, for example.
But the suits "are not routine disputes about the powers
of Cheney's office," the Times says. "Rather, the
plaintiffs — the Sierra Club and Judicial Watch — contend that
Cheney and his staff violated an open-government measure known
as the Federal Advisory Committee Act by meeting behind closed
doors with outside lobbyists for the oil, gas, coal and
nuclear industries."
Stephen Gillers, a New York University law professor, told the
Times Scalia should have skipped going hunting with Cheney
this year.
"A judge may have a friendship with a lawyer, and that's
fine. But if the lawyer has a case before the judge, they
don't socialize until it's over. That shows a proper respect
for maintaining the public's confidence in the integrity of
the process," said Gillers, who is an expert on legal
ethics. "I think Justice Scalia should have been
cognizant of that and avoided contact with the vice president
until this was over. And this is not like a dinner with 25 or
30 people. This is a hunting trip where you are together for a
few days."
The Times notes that pair arrived Jan. 5 on Gulfstream jets
and were guests of Wallace Carline, the owner of Diamond
Services Corp., an oil services company in Amelia, La. The
Associated Press in Morgan City, La., reported the trip on the
day the vice president and his entourage departed.
"They asked us not to bring cameras out there," said
Sheriff David Naquin, who serves St. Mary Parish, about 90
miles southwest of New Orleans, referring to the group's
request for privacy. "The vice president and the justice
were there for a relaxing trip, so we backed off."
While the local police were told about Cheney's trip shortly
before his arrival, they were told to keep it a secret, Naquin
said to the Times.
"The justice had been here several times before. I'm kind
of sorry Cheney picked that week because it was a poor
shooting week," Naquin said. "There weren't many
ducks here, which is unusual for this time of the year."
Scalia agreed with the sheriff's assessment.
"The duck hunting was lousy. Our host said that in 35
years of duck hunting on this lease, he had never seen so few
ducks," the justice said in his written response to the
Times. "I did come back with a few ducks, which tasted
swell."
Steven Lubet, who teaches judicial ethics at Northwestern
University Law School, said he was not convinced that Scalia
must withdraw from the Cheney case but said the trip raised a
number of questions.
"At the very least, you have to start thinking about
whether disqualification is necessary," Steven Lubet, who
teaches judicial ethics at Northwestern University Law School
told CBS News, Radio.
"It's not clear this requires disqualification, but there
are not separate rules for longtime friends," Lubet said
to the Times. "This is not like a lawyer going on a
fishing trip with a judge. A lawyer is one step removed.
Cheney is the litigant in this case. The question is whether
the justice's hunting partner did something wrong. And the
whole purpose of these rules is to ensure the appearance of
impartiality in regard to the litigants before the
court."
According to the newspaper, the code of conduct for federal
judges sets guidelines for members of the judiciary, but it
does not set clear-cut rules. A judge should "act at all
times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary," it says.
"A judge should not allow family, social or other
relationships to influence judicial conduct or
judgments," it says. Nor should a judge "permit
others to convey the impression that they are in a special
position to influence the judge."
In the lower courts, litigants may ask a judge to step aside.
And if the request is refused, they may appeal to a higher
court.
At the Supreme Court, the justices decide for themselves
whether to step aside, the Times adds.
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