Justice compromised

February 02, 2004|By Steven Lubet

YOU HAVE to give Vice President Dick Cheney credit. He goes hunting where the ducks are.

More precisely, he spent several days in early January on a duck hunting trip alongside Supreme Court Justice Antonin Scalia, and seven others, at a private camp in southern Louisiana. Such camaraderie between a politician and a Supreme Court justice might not always raise eyebrows, but the timing of this excursion made it particularly controversial. Just three weeks earlier, the Supreme Court, with Justice Scalia's participation, had agreed to hear Mr. Cheney's appeal in a major lawsuit.

Here are the facts:

Shortly after his inauguration, President Bush named Mr. Cheney to head the National Energy Policy Development Group (NEPDG), a task force charged with devising a national energy policy. Mr. Cheney's group worked in secret, without releasing interim reports or revealing the names of participants at its meetings. That would be legal only if all of the participants were government employees. But it was widely suspected that some of the meetings included energy company lobbyists and executives, including Enron's Kenneth L. Lay.

Two public interest groups - the Sierra Club and Judicial Watch - sued for access to Mr. Cheney's records. On July 8, 2003, a lower court ruled against the vice president, requiring him to disclose certain documents. Noting that he could face a contempt of court citation if he failed to comply, Mr. Cheney's lawyers asked the Supreme Court to accept the case for review.

At some point in the midst of this, Mr. Cheney and Justice Scalia planned their travels. On Dec. 15, the Supreme Court accepted the case and scheduled it for hearing. On Jan. 5, the hunters arrived in Louisiana as guests of Wallace Carline, the owner of an oil services company.

At the very least, then, Justice Scalia proceeded with his vacation arrangements during the time when the Supreme Court was deciding whether to accept Mr. Cheney's appeal. And so far, it appears that Justice Scalia intends to continue participating in the court's consideration of the case, although a federal statute requires him to step aside in any proceeding where his "impartiality might reasonably be questioned."

Justice Scalia has dismissed any concerns about possible impropriety. Questioned by the Los Angeles Times, he provided a written response that defended his actions:

"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."

But the case against Mr. Cheney was not an ordinary lawsuit in his official capacity. The plaintiffs in the litigation challenged Mr. Cheney's conduct of the task force, accusing him of allowing energy industry lobbyists to operate "as if they were members of the NEPDG" while wrongly withholding information about the "identity of the participants in the process." It is not merely a case about, say, the interpretation of a statute or the allocation of funds. It is a case about the candor and forthrightness of the vice president, who also happens to be Justice Scalia's hunting partner.

For better or worse, many Americans believe that the U.S. Supreme Court decided the 2000 presidential election, putting Mr. Bush and Mr. Cheney in office by a 5-4 vote. Some have questioned whether the majority and dissenting opinions were driven more by political affinity than constitutional law.

It is therefore more important than ever for the justices to be scrupulously neutral in political matters, both in fact and appearance. No one would question attendance at a White House dinner, but Justice Scalia's vacation raises far more serious issues, especially if he insists on sitting in Mr. Cheney's case (which, ironically, is all about cronyism).

Great Supreme Court justices have demonstrated independence by distancing themselves from their own political parties. Justices Felix Frankfurter and Byron R. White regularly disappointed the Democrats, just as Chief Justice Earl Warren and Justice William J. Brennan frequently perplexed the Republicans.

In contrast, Justice Scalia has displayed an unfortunate, and ill-timed, chumminess with the vice president. Worse, he has flaunted it by brushing off legitimate questions about his impartiality. While unwilling to acknowledge that the joint vacation compromised his apparent neutrality, he did take care to reassure the Los Angeles Times about another aspect of the junket. The ducks, wrote Justice Scalia, "tasted swell."

Steven Lubet is a professor of law at Northwestern University in Chicago and co-author of Judicial Conduct and Ethics.

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