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By DAVID BALLINGRUD, Times Staff WriterAntonin Scalia sees no conflict in going on a hunting trip with Dick Cheney, then hearing his appeal of a lawsuit. Others do.
Imagine that you sued your neighbor and won. The neighbor appealed, however, and an important hearing in the case is just around the corner.
Then you learn that the neighbor and one of the judges who will hear his appeal are friends. In fact, your neighbor has just taken the judge on a four-day duck hunting trip at a private camp in Louisiana. You weren't invited.
Do you have a problem with that?
This spring, the U.S. Supreme Court will hear a case with implications not only for the office of the vice president, but perhaps for the presidential elections in November.
Two years ago, the Sierra Club and a nonprofit watchdog organization called Judicial Watch sued Vice President Dick Cheney, former chief executive of Halliburton Corp., who has played the key role in the drafting of the nation's energy policy.
The two plaintiffs wanted to know if Cheney met behind closed doors with lobbyists and corporate officials from the oil, gas and power industries - among them Kenneth Lay from scandalized Enron Corp - while developing the policy. Among other things, they asked for records of who attended the meetings. Cheney refused.
When the plaintiffs won in the lower courts, Cheney asked the U.S. Supreme Court to hear the case. On Dec. 15 the court said it would.
Just three weeks later, Justice Antonin Scalia traveled as an official guest of Cheney on a small government jet to Patterson, La., to hunt ducks. According to published reports, the justice and the vice president were accompanied by a second Air Force jet carrying staff and security personnel.
With two Black Hawk helicopters hovering nearby, Cheney and Scalia were driven away to a secluded, private hunting camp owned by Wallace Carline, the head of Diamond Services Corp., an oil services firm in Amelia, La. Scalia has said the trip was just a social outing, the kind justices routinely engage in, and therefore there was no need to consider recusing himself from the case. Furthermore, he told an audience at Amherst College in Massachusetts last week, Cheney is being sued in his official role and so their personal friendship is not relevant.
"It did not involve a lawsuit against Dick Cheney as a private individual," Scalia said. "This was a government issue. It's acceptable practice to socialize with executive branch officials when there are not personal claims against them. That's all I'm going to say for now. Quack, quack."
Not so, David Bookbinder of the Sierra Club said Friday. "We sued him; we are seeking an order against him, not against the office of the vice president or a policy of the administration. It is his personal behavior that is at issue: who he chose to meet with was his personal decision."
A number of legal experts strongly disagree with Scalia.
"There is a very serious problem with Scalia sitting on the case," said Stephen Gillers, vice dean of the New York University School of Law, and an expert on judicial conflict of interest. "And an even bigger problem is that he doesn't see the problem.
"Cheney has a direct interest in the outcome of the case, personally and politically. This is an easy case; he should recuse himself."
Furthermore, Gillers said, if Scalia accepted a ride to the hunt with the vice president, the issue is even more clear. "If the vice president is the source of generosity, it means Scalia is accepting a gift of some value from a litigant in a case before him. It is not just a trip with a litigant. It's a trip at the expense of the litigant."
Others aren't so sure. Roberta K. Flowers, director of the Center for Excellence in Advocacy at Stetson University College of Law in Gulfport, said she thought Scalia was "probably" right not to step down from the case "unless someone can show there was more than social contact. Courts operate with an assumption of nonrecusal. Recusal should be when it's really necessary."
Judges should try to avoid the appearance of impropriety, Flowers said, "so that citizens don't lose faith in system. But you also have to take into account the practicalities of how the system works. A judge has to act impartially despite his social contacts, and he did take an oath to do that."
Gillers, and others, believe the hunting trip is more than just a social encounter.
"This isn't like being invited to a White House dinner. This was a small, intimate group on an event that lasted four days." (Cheney reportedly left after two days, but Scalia stayed on for a few more.)
"Scalia sits on the highest court in the land," Gillers said. "His attitude toward recusal and conflict of interest will serve as an example to many thousands of state and federal judges in the lower courts. He is saying to America's judges, just do what I did and decide the case anyway. And I have a big problem with that."
"This is certainly a level of hospitality that most litigants are not able to extend to Supreme Court justices," said Northwestern University law professor Steven Lubet. "It reinforces the perception this was an exceptional event, not a run-of-the-mill social event or a White House dinner."
Cheney aides say the vice president is entitled to travel on government jets and to bring guests if he chooses. But the situation is different for a judge. A federal statute addresses the issue, and it seems clear enough. But is it?
"Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned," says Title 28, Section 455 of the U.S. Code.
When the Los Angeles Times asked Scalia if he would recuse himself, the justice wrote back: "I do not think my impartiality could reasonably be questioned." The italics were added by Scalia for emphasis, said court spokeswoman Kathy Arberg.
"There's the problem," said Gillers. "Reasonably questioned by whom? The case law suggests the answer is a reasonable member of the public knowing all the facts. Scalia is saying if all the facts are known, there would not be a question about my impartiality."
Meanwhile, the Sierra Club and Judicial Watch are treading carefully. They have not asked Scalia to recuse himself, and probably won't. After all, they say, he has revealed his intentions.
"Based on facts we've ascertained thus far we will not ask" Scalia to step aside, said Tom Fitton, president of Judicial Watch. "You're not going to get a recusal here so it makes no sense to ask for one."
Bookbinder, Washington legal director for the Sierra Club, said his group is still thinking the issue through.
"We are still investigating the facts," he said. "We understand that the public would have doubts about such a trip, but we are trying to find out exactly what happened before we make such an important decision." Justices do recuse themselves from time to time. Scalia himself has stepped aside in a number of cases involving the Department of Labor, where his son worked. And last fall he recused himself from a case challenging the words "under God" in the Pledge of Allegiance.
In general, though, the nine justices try to avoid recusal. "Even one unnecessary recusal impairs the functioning of the court," they wrote in 1993. "In this court, where the absence of one justice cannot be made up by another, needless recusal deprives litigants of the nine justices to which they are entitled (and) produces the possibility of an even division on the merits of the case. . . ."
It is up to each justice to make his or her own decisions on recusal, according to Chief Justice William H. Rehnquist.
Democratic Sens. Patrick J. Leahy and Joe Lieberman recently wrote to Rehnquist asking whether the court had procedures and rules for determining when a justice should step aside, and a way to review a justice's decision to decline to recuse himself.
"When a sitting judge, poised to hear a case involving a particular litigant, goes on vacation with that litigant, reasonable people will question whether that judge can be a fair and impartial adjudicator of that man's case," they wrote.
Rehnquist's response was chilly.
"There is no formal procedure for court review of the decision of a justice in an individual case," Rehnquist wrote. Furthermore, he said, "anyone at all is free to criticize the action of a justice - as to recusal or as to the merits - after the case has been decided. But I think that any suggestion by you or Senator Lieberman as to why a justice should recuse himself in a pending case is ill-considered."