If only we all had such friends.
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Scalia Refusing to Take Himself Off Cheney Case
March 19, 2004
By MICHAEL JANOFSKY
WASHINGTON, March 18 - Invoking history, law and the upper
social strata of Washington, Justice Antonin Scalia said on
Thursday that he would not remove himself from a case
before the Supreme Court involving his good friend, Vice
President Dick Cheney.
In a 21-page memorandum, a rare public explanation and
rarer still for describing what it means to have friends in
the highest of places, Justice Scalia said it was not
improper that he hunted ducks in Louisiana with Mr. Cheney
in January, just three weeks after the court agreed to
consider the case.
Justice Scalia not only justified his participation in the
case, he also disclosed new details of the trip. "I never
hunted in the same blind with the vice president," he
wrote.
He also recounted other cases in which presidents and
justices socialized without concerns about appearance.
Citing historical accounts, he wrote of a time when Justice
Harlan F. Stone "tossed around a medicine ball with members
of the Hoover administration mornings outside the White
House," and when Chief Justice Fred M. Vinson "played poker
with President Truman." And who could forget those days
when Justice John Marshall Harlan and his wife sang hymns
at the White House with President Rutherford B. Hayes or
when Justice Byron R. White skied in Colorado with Attorney
General Robert F. Kennedy?
In a more contemporary glimpse into the coziness of
Washington's elite, Justice Scalia wrote, "A rule 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." Many justices, he said,
were appointed to the court precisely because they were
friends with the president or other senior officials.
Justice Scalia argued forcefully that friendship is a basis
for recusal only "where the personal fortune or the
personal freedom of the friend is at issue," not a friend's
actions on behalf of the government. As a result, he wrote,
he had no justification to step aside. A Supreme Court
justice's decision on recusal is final and cannot be
challenged.
The case before the court that involves Mr. Cheney is the
effort by the Sierra Club to force him to provide
information about the energy task force he led as the Bush
administration, in its early months, was formulating
environmental policy. After an appeals court ruled in favor
of the Sierra Club and another plaintiff, Judicial Watch, a
government watchdog group, the administration appealed to
the Supreme Court on behalf of Mr. Cheney. The club, alone,
petitioned Justice Scalia to step aside, arguing that his
participation in the Louisiana trip created the appearance
of favoritism undermining "the prestige and credibility of
this court."
But in an obvious jab at the Sierra Club's reasoning that
social contact by justices compromises their objectivity,
Justice Scalia noted almost sarcastically that two days
before the club opposed Mr. Cheney's appeal to the court,
the club's lead lawyer in this case, Alan B. Morrison, a
friend of Justice Scalia for nearly 30 years, invited him
to address his Stanford Law School class.
"It was an open invitation," Mr. Morrison said,
acknowledging Justice Scalia's reference as a not-so-subtle
reminder that friendships transcend even political lines.
In his decision, Justice Scalia also took issue with
critics who would assume he could not rule impartially
simply because Mr. Cheney accepted his invitation to hunt
ducks and he accepted Mr. Cheney's invitation to fly to
Louisiana on a government jet. An account of the trip was
published in The Daily Review in Morgan City, La., in early
January, and The Los Angeles Times subsequently reported on
the potential conflict of Justice Scalia serving on the
case involving Mr. Cheney.
"If it is reasonable to think that a Supreme Court justice
can be bought so cheap," Justice Scalia wrote, "the nation
is in deeper trouble than I had imagined."
David Bookbinder, the Washington legal director for the
Sierra Club, criticized Justice Scalia's decision, calling
it "a splendid example of how secrecy corrodes public trust
and the integrity of government."
"If Justice Scalia believes the facts as he laid them out,"
Mr. Bookbinder added, "he should have released them two
months ago before the public started to ask questions."
The decision also drew strong criticism from Senator
Patrick J. Leahy of Vermont, the ranking Democrat on the
Judiciary Committee.
"There is no question that the very fact of this episode
had raised appearance and impartiality issues," Mr. Leahy
said. "To many, the very fact that this vacation weekend
happened while this decision was pending is enough to make
the situation quack like a duck."
Decisions on recusals by Supreme Court justices are not
unusual, but most are voluntary, rather than in response to
a petition from a litigant. And most come without comment,
let alone one as long as Justice Scalia's.
In choosing to offer an expansive rationale, Justice Scalia
provided colorful details of the January duck hunting trip
as well as a snapshot of a friendship that began when he
and Mr. Cheney both worked in the Ford administration.
Justice Scalia was an assistant attorney general and Mr.
Cheney was White House chief of staff.
The trip, he wrote, had been planned for the court's winter
recess - and long before the court agreed to hear the case
involving Mr. Cheney. Mr. Cheney accepted the invitation,
noting that national security required him to fly in a
government jet, and he offered Justice Scalia the chance to
ride along if seats were available. They were, for Justice
Scalia, for one of his sons and a son-in-law.
In Louisiana, Justice Scalia said the hunting party
numbered about 13, including Mr. Cheney, his staff and
security detail. They hunted over three days in two boats
and ate all their meals together.
"Sleeping was in rooms of two or three, except for the vice
president, who had his own quarters," Justice Scalia wrote.
"Hunting was in two- or three-man blinds. As it turned out,
I never hunted in the same blind with the vice president.
Nor was I alone 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."
"Of course," he added, "we said not a word about the
present case."
He and his relatives stayed in Louisiana two days longer
than Mr. Cheney, Justice Scalia said, flying back to
Washington on a commercial flight from New Orleans.
He wrote: "Since we were not returning with him, we
purchased (because they were the least expensive)
round-trip tickets that cost precisely what we would have
paid if we had gone both down and back on commercial
flights.
"In other words, none of us saved a cent by flying on the
vice president's plane."
http://www.nytimes.com/2004/03/19/politics/19SCAL.html?ex=1080705548&ei=1&en=6f60100843f8049a
