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.
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Scalia-Cheney Trip Raises Eyebrows
WASHINGTON, Jan. 17, 2003
"At the very least, you have to start thinking about
whether disqualification is necessary"
Northwestern University Law professor Steven Lubet, to
CBS News, Radio
(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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