Scalia won't sit out Cheney case

Hunting trip with vice president creates conflict for justice, critics say

March 19, 2004|By Naftali Bendavid | Naftali Bendavid,CHICAGO TRIBUNE

WASHINGTON - Supreme Court Justice Antonin Scalia defied his critics yesterday and rejected a request that he disqualify himself from a case involving Vice President Dick Cheney, whom Scalia joined on a duck hunting trip this year.

Some legal experts believe the trip - which included a joint flight to Louisiana on a government airplane - creates a conflict of interest for Scalia in the case and that he should recuse himself. The lawsuit was filed by watchdog groups trying to force Cheney to release records of a White House energy task force he headed.

Scalia forcefully denied a recusal request by the Sierra Club, one of the groups, in a highly unusual 21-page statement, saying his personal relationship with Cheney has little bearing on a case that involves only the vice president's official duties. Scalia sharply criticized the request for recusal for being based largely on demands of newspaper editorials, which he said had many of the facts wrong. He said he spent little time with Cheney on the trip.

"It was not an intimate setting," Scalia wrote. "I never hunted in the same blind with the vice president. Nor was I alone with him at any time during the trip, except, perhaps, for instances so brief and unintentional that I would not recall them. ... Of course we said not a word about the present case."

He added, "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."

But David Bookbinder, the Sierra Club's Washington legal director, said the case is about more than Cheney's official duties. The issue, he said, is the secrecy Cheney imposed on the task force and its meetings with energy industry executives.

"His personal conduct is at issue," Bookbinder said. "He is the one who opened the door and rolled out the red carpet to the energy industry, and he is the one who determined that the public will not learn anything about their involvement. This is a case about appearance of impropriety, and the appearance was created by flying down together."

Federal rules call for a judge's disqualification in cases that pose a conflict of interest. Supreme Court justices decide for themselves whether to step aside, and there is no appeal.

The Scalia-Cheney hunting trip has become a charged issue, re-igniting some of the accusations of a politicized, arrogant Supreme Court that arose in 2000, when the court settled the presidential election in favor of President Bush.

The personalities involved have generated additional heat. As the razor-sharp author of some of the court's most conservative opinions, Scalia has attracted the enmity of many liberals. And Cheney in some ways has developed a similar image at the White House, since he is viewed by some as the center of a hard-line conservative group.

On the flip side of the debate, many conservatives view the call for Scalia's recusal as a politically motivated cheap shot.

Scalia was not obligated to give any reason for his decision against withdrawing, and the fact that he chose to issue a lengthy decision suggests his frustration with the matter.

Scalia directly took on the Sierra Club's motion for recusal, which quoted a Feb. 13 editorial in the Chicago Tribune saying Cheney's "reputation and his integrity are on the line."

"I think not," Scalia replied tartly.

Scalia also dismissed a Sierra Club assertion that he should step aside because several newspapers have called on him to do so - which the group said reflects the public's questions about his impartiality. "The implications of this argument are staggering," Scalia said.

Scalia cited a long list of what he said were factual errors in many of the editorials, such as statements that he and Cheney were in a duck blind together and that a private jet transported them.

Cheney's task force on energy policy, formed shortly after he took office, attracted accusations from the beginning that it was conferring closely with energy executives while brushing off input from environmental groups.

The Sierra Club and another watchdog group, Judicial Watch, sued to force the panel to release its records, citing a law governing federal advisory committees. The White House has bluntly refused, asserting a broad right to secrecy in its decision-making process.

The Chicago Tribune is a Tribune Publishing newspaper.

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