[ql06] CON LAW: US Supreme Ct's lack of recusal standards questioned

From: Stephen Kennedy <2srk@xxxxxxxxxxxxxxxx>
To: ql06@xxxxxxxxxxxxx
Date: Sun, 01 Feb 2004 22:37:22 -0500

I see that USSC Justice Scalia is refusing to recuse himself from the
upcoming Cheney case despite sharing a well-publicized duck hunting trip
with him earlier this year.

Scalia argues near the bottom of this article that he met Cheney in his
personal capacity, not his official one. I can see this leading to a
twisted re-enactment of Roncarelli, in which Scalia argues that Cheney
is entitled to keep the minutes of his energy task force meetings with
industry lobbyists secret, because he was acting only in his personal
capacity.

If you're interested in the actual letter from the two congressmen to
Chief Justice Rehnquist it's available at
http://www.house.gov/reform/min/pdfs_108_2/pdfs_inves/pdf_admin_supreme_court_scalia_cheney_jan_30_let.pdf

/Published on Saturday, January 31, 2004 by the Los Angeles Times /
*2 Democrats Criticize Scalia's Refusal to Quit Cheney Case
Reps. Waxman and Conyers cite the 1995 recusal of a judge with ties to
President Clinton.
*
*by David Savage*

WASHINGTON — Two House Democrats added to the pressure on Justice
Antonin Scalia to withdraw from a pending Supreme Court case involving
Vice President Dick Cheney on Friday, saying a recent duck hunting trip
the justice took with Cheney posed the same kind of conflict of interest
that had forced an Arkansas judge who was a friend of President Clinton
to withdraw from a 1995 case.

Reps. Henry A. Waxman (D-Los Angeles) and John Conyers Jr. (D-Mich.)
cited that precedent in a letter to Chief Justice William H. Rehnquist
and urged him to establish a procedure for "formal review" of justices'
possible ethical conflicts.

The case before the Supreme Court could compel Cheney to release
documents relating to his energy task force.

Scalia's relationship with Cheney has come under scrutiny because he
flew to Morgan City, La., with the vice president on Jan. 5 to hunt. The
two were also seen dining together outside Washington in November.

In the Arkansas case, then-independent counsel Kenneth W. Starr pressed
U.S. District Judge Henry Woods to step aside from a matter that grew
out of the Whitewater investigation. Starr argued that a "reasonable
observer would question [his] impartiality" because of the judge's
friendship with Clinton and his wife, Sen. Hillary Rodham Clinton.

The judge had balked at withdrawing because charges in the case were
brought against Arkansas Gov. Jim Guy Tucker and did not involve the
Clintons directly. Nonetheless, Starr persisted, saying that the "public
perception" was that the Whitewater investigation involves the Clintons,
at least indirectly.

When Starr took the matter to a higher court, the U.S. Court of Appeals
in St. Louis agreed and ordered Woods, now deceased, to step aside.

The law requires a judge to remove himself when there is "the appearance
of bias," the appeals court said. It does not require the showing of
actual bias.

"We make this request because it appears that Justice Scalia is
following a different standard than the lower courts in deciding recusal
questions," Waxman and Conyers wrote in their letter to Rehnquist.

"The federal statute requiring a judge to recuse himself 'in any
proceeding where his impartiality might reasonably be questioned'
applies to Supreme Court justices and other federal judges alike," the
lawmakers wrote. "We do not believe that one standard should apply to
judges who are friends of the Clintons and another standard should apply
to judges who are friends of Mr. Cheney."

On three occasions in late November and early December, the Supreme
Court considered an appeal filed by Bush administration lawyers that
sought to preserve the secrecy that surrounded Cheney's energy task force.

The Sierra Club and Judicial Watch had sued the vice president, alleging
that he violated an open-government law by meeting behind closed doors
with corporate lobbyists. A judge ordered Cheney to turn over documents
to the lawyers for the two groups, and the U.S. court of appeals upheld
that order.

But on Dec. 15, the high court voted to take up Cheney's appeal. The
court is due to hear arguments in the case in April.

In response to a Times inquiry, Scalia said this month that he did not
see a need to remove himself from the case because Cheney was being sued
in his "official capacity, as opposed to [his] personal capacity."

"I do not think my impartiality could reasonably be questioned," the
justice said.

In their letter Friday, Waxman and Conyers argued that Cheney is the
central figure in the lawsuit: "It is no exaggeration to say that the
prestige and power of the Vice President are directly at stake" in the case.

###

[ql06] CON LAW: US Supreme Ct's lack of recusal standards questioned

Other related posts: