Justice Scalia Dismisses Sierra Club Recusal Request

By J.R. Pegg

WASHINGTON, DC, March 19, 2004 (ENS) - Supreme Court Justice Antonin Scalia has refused to recuse himself from a pending case involving Vice President Dick Cheney because of a hunting trip the two took with several other friends. Recusal means that judges disqualify themselves from participation in a court decision on grounds such as prejudice or personal involvement.

"I do not believe my impartiality can be reasonably questioned," Scalia said in a memorandum explaining his decision.


Antonin Scalia was appointed to the Supreme Court in 1986 by President Ronald Reagan and is a consistent conservative voice on the nation's highest court. (Photo courtesy U.S. Supreme Court )
"The question simply put, is whether someone who thought I could decide this case impartially despite my friendship with the Vice President would reasonably believe that I cannot decide it impartially because I went hunting with that friend and accepted an invitation to fly there with him on a government plane," Scalia wrote.

"If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined."

Cheney and Scalia have been friends since the mid-1970s, when the two worked together under President Gerald Ford.

The memorandum, released Thursday, concerns legal actions filed against Cheney by Judicial Watch and Sierra Club. The groups each sued the vice president after his office refused to release information about closed door meetings of his energy task force that constructed the Bush administration's National Energy Policy issued in May 2001. The separate cases have been consolidated.

The two organizations contend that Cheney inappropriately allowed energy industry representatives at those meetings to help craft White House energy policy.

Sierra Club believes the hunting trip Cheney and Scalia took together in January 2004 raised legitimate questions about the justice's impartiality in the case.

Judicial Watch said it did not find enough evidence for recusal.

In his memorandum, Justice Scalia provided many of the missing details about the trip.


Supreme Court Justice Antonin Scalia (Photo courtesy U.S. Supreme Court)
He has been going for five years to the Louisiana fishing camp of his friend Wallace Carline, owner of a company that provides services and equipment rental to oil rigs in the Gulf of Mexico. It was in the spring of 2003, that Scalia says he suggested that Carline extend an invitation to Cheney, an enthusiastic duck hunter.

Scalia says the hunting trip was planned before the Supreme Court made its decision in December 2003 to hear the Cheney case.

Flying with Cheney on a government plane to Louisiana "cost the government nothing," Scalia said, and saved him nothing personally because he had purchased a roundtrip commercial flight, which he used on the way back to Washington.

The camp was not "an intimate setting," Scalia wrote. There were 13 individuals on the trip, Scalia said, and he and Cheney were never alone together.

"Of course we said not a word about the present case," Scalia wrote in the memo.

He dismissed his actions as falling far short of actions requiring the recusal of a Supreme Court Justice, noting that friendship "has traditionally not been a ground for recusal where official action is at issue."

CheneyThe Supreme Court will hear a case that centers on the White House's refusal to hand over information about meetings of its energy task force, which was led by Vice President Dick Cheney. (Photo by David Bohrercourtesy The White House ) "The people must have confidence in the integrity of the Justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, and in an atmosphere where the press will be eager to find faults."

The implications of the Sierra Club's argument that he should recuse himself because of media pressure are "staggering," Scalia said.

Many of the media accounts attached as exhibits in the conservation group's motion "do not have the facts right," according to Scalia.

"... recusing in the face of such charges would give elements of the press a veto over participation of any Justices who had social contacts with, or were even known to be friends of, a named official," Scalia wrote. "That is intolerable."

The Sierra Club, in a statement, said Scalia "misses the point."

"There is a problem when a Justice and a litigant meet secretly at a private hunting retreat - regardless of what happens behind closed doors," according to the conservation group. "It is the appearance of secrecy and impropriety that creates the problem, and it clearly has caused a public outcry here."


Originally from Wyoming, Vice President Cheney enjoys hunting and fishing. (Photo by David Bohrer courtesy The White House)
The organization says if Scalia and Cheney had shared the specific details from the outset, "the public might have responded differently and this might have taken a different course."

"We wish that Vice President Cheney would be as forthcoming with the details of the secret Energy Task Force as Justice Scalia has now been with their vacation together," Sierra Club said.

So far Cheney's lawyers have been unable to convince lower courts that the White House has the right to shield information from the public about the role of energy industry executives and lobbyists on the task force.

The plaintiffs say the public has a right to know what influence energy corporations may have had in structuring the administration's energy plan, which relies mainly on fossil fuels and nuclear power rather than on renewables, efficiency and conservation.

Bush officials say there was nothing devious about the meetings and argue that the White House should be able to gather information and advice without public scrutiny.

In July 2003, a three judge panel of the D.C. Circuit Court of Appeals said the Bush administration is subject to "discovery," and must comply with requests for information.

In rejecting the government's arguments, the court wrote that the White House's position would "transform executive privilege from a doctrine designed to protect presidential communications into virtual immunity from suit."

The administration asked the appeals court for a rehearing, but that request was denied in September, prompting the White House to appeal the decision to the Supreme Court.

The Supreme Court, with Justice Scalia on the bench, will hear the Cheney case in April, with a ruling expected sometime in June.

Read the Justice Scalia's memo online at: http://www.supremecourtus.gov/whatsnew.asp