Ducks Redux

By Lubet, Steven | Judicature, March/April 2008 | Go to article overview

Ducks Redux

Lubet, Steven, Judicature

In refusing to recuse following his duck-hunting trip with Vice President Cheney, Justice Scalia articulated a new bright-line rule, stating that the ordinary disqualification standards do not apply in "official capacity" cases. But is it actually the law?

As everyone knows, Supreme Court Justice Antonin Scalia does not pull any punches. He says what he means and means what he says. Blunt and outspoken, he is notably impatient with sly legalisms or logical gymnastics, with little tolerance for poor reasoning or flabby rationalizations. Sparing neither hapless lawyers nor his fellow justices, he often uses bitter sarcasm to underscore his arguments. Whether you applaud or cringe at his jurisprudence, there is no denying that Scalia's opinions are penetrating and direct, stating his principles and getting right to the point. Unlike many others, Justice Scalia does not trouble to dress up his premises or disguise his views. You might be tempted to say that he sets an admirable standard for transparency in judging, but that is not quite always the case. When his own conduct is questioned, it turns out that Scalia can be just as oblique as the lesser judges whom he so often derides.

In early January 2004, Scalia went on a now-famous duck hunting trip with Vice President Dick Cheney, and seven others, at a private camp in Southern Louisiana. Such companionship between a Supreme Court justice and a politician would not always raise eyebrows in every quarter, but the timing of this particular excursion made it extremely controversial. Only a few weeks earlier, the Supreme Court, with Scalia's participation, had agreed to hear Cheney's appeal in a sensitive lawsuit.

Shortly after his 2000 inauguration, President Bush named Cheney to head the National Energy Policy Development Group, a task force charged with devising a national energy policy. Cheney's group worked in secret, without releasing interim reports or revealing the names of participants at its meetings. Such secret meetings are usually limited to government employees and officials, but it was widely suspected that Cheney's group also included energy company lobbyists and executives whose input on national policy might not be entirely detached from their own self-interest.

Two public interest groups-the Sierra Club and Judicial Watch-had sued for access to Cheney's records, and had succeeded in obtaining a lower court ruling that required the Vice President to disclose certain documents. Noting that he could face a contempt-of-court citation if he failed to comply, Cheney asked the United States Supreme Court to take the case for review.

At some point in the midst of this, Cheney and Scalia confirmed their travel plans, and on December 15, 2003, just three weeks before the duck hunt, the Supreme Court voted to accept the case and scheduled it for oral argument.

Questions were almost immediately raised about Scalia's continued participation in the Cheney case, but he just as quickly discounted concerns about any possible impropriety. In a written reply to an inquiry from the Los Angeles Times, Scalia said that social contacts with high-level executive officials (including Cabinet members) 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.

Making light of the entire situation, he added that the hunting had been rather poor, but reassured the reporter that the ducks "tasted swell." (Later, speaking on a college campus, he brushed off a question from the audience with a sardonic "quack, quack.")

Not everyone thought it was a laughing matter. Although it is extremely unusual for a litigant to request recusal of a Supreme Court justice, the Sierra Club soon filed a formal motion to disqualify Scalia in the Cheney case, on the statutory ground that Scalia's "impartiality might reasonably be questioned" because of his extraordinary vacation with the vice president. …

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