[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 

If you're interested in the actual letter from the two congressmen to 
Chief Justice Rehnquist it's available at 

/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.

Copyright 2004 Los Angeles Times


Other related posts:

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