Ducking Common Sense
Looking for impropriety where there is none.


Here we go again with questions about Justice Antonin Scalia’s judicial ethics. Justice Scalia was probably too “scrupulous by half when he agreed to recuse himself from the pending Newdow case on the constitutionality of the Pledge of Allegiance’s reference to our nation “under God.” Now the media long knives are out for him over his refusal to recuse himself in another case, pitting the Sierra Club and Judicial Watch against Vice President Dick Cheney.

Scalia and Cheney were guests of a businessman in Louisiana in early January, staying at his hunting camp for several days (with other guests) on a duck hunt. The Court had accepted In re Cheney for review on December 15. The Los Angeles Times reported a new wrinkle on February 5: that Scalia had not only gone hunting with the vice president, he had actually flown down to Louisiana with Cheney on “Air Force 2″ (a small jet on this trip) and availed himself of Cheney’s motorcade from the airfield to the hunting camp. Horrors! He’s too cozy with Cheney to participate in the case with an open mind, say Scalia’s critics, including scores of editorial pages around the country.

I think Scalia was wrong to recuse himself from Newdow, and he’s right not to recuse himself this time. The recognized experts on judicial ethics, Professors Stephen Gillers (of NYU law school) and Steven Lubet (of Northwestern), are all over the case. Lubet, in the Baltimore Sun on February 2, writes that the case before the Supreme Court is “about the candor and forthrightness of the vice president, who also happens to be Justice Scalia’s hunting partner.” By going on the trip, Lubet writes, Scalia “displayed an unfortunate, and ill-timed, chumminess with the vice president.”

With the new revelation of Scalia’s ride in Cheney’s airplane, the criticism ratcheted up. NYU’s Gillers declares that “it means Scalia is accepting a gift of some value from a litigant in a case before him,” and it is therefore a clear violation of ethics rules if Scalia continues to participate in the case. Lubet chimes in that the plane ride “is certainly a level of hospitality that most litigants are not able to extend to Supreme Court justices.”

Let’s get a few things straight, and use some common sense. Cheney and Scalia had jointly been guests of the same businessman in past duck-hunting seasons. So they have spent time together, and are presumably on friendly terms. How is the question–to recuse or not to recuse–made any more relevant by the fact that they hunted together again this year? If Scalia had skipped the trip this year, wouldn’t his past chumminess with Cheney be sufficient to require the same recusal demanded of him now–if in fact it is reasonably required? And if such a history of friendship were enough to conclude the question, by what means could Scalia “cleanse” himself of the taint of suspicion that he cannot be impartial in the case? Should he not only have stayed away from the duck blinds, but publicly announced that he is no longer the friend of the vice president? But that would seem to announce that he has prejudged the question of Cheney’s “candor and forthrightness,” no? The critics’ own standard, logically extended, leaves Scalia in a no-win situation for participation in the case. And that raises the suspicion that the critics really don’t want Scalia in on the case because they fear what his vote on the merits might be, quite apart from any other consideration.

It’s also worth pointing out, contra Lubet, that In re Cheney is not at all about the vice president’s “candor and forthrightness.” It’s about what various federal statutes require regarding a court’s power to compel disclosure of information about the activities of the National Energy Policy Development Group, which Cheney chaired. Cheney’s claim is that the federal statutes on which the plaintiffs relied do not apply to him or his office. How the case raises questions about Cheney’s honesty is beyond me.

So it comes down to this: Scalia is on friendly terms with Cheney. And the relevant federal statute says he must “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” (The Los Angeles Times story of February 5 left out the “reasonably” when quoting this.) That language isn’t much to go on. But the Code of Conduct for United States Judges–which omits Supreme Court justices from its coverage but may be used for guidance here–runs to some length in supplying examples of the sorts of things that call one’s impartiality into question. The crucial concept animating most of its examples involving relationships with litigants is interest–as in conflict of.

It cannot reasonably be contended that Scalia has an interest in the outcome of Cheney’s case. What does it matter to him whether the vice president is required to disclose the inner workings of the energy task force? To borrow a Jeffersonian expression, it neither picks his pocket nor breaks his leg if Cheney loses–or wins. Will Dick stop speaking to Nino if the case is lost on the justice’s vote? Will the vice president aim his shotgun errantly in Scalia’s direction next time they go duck hunting? Somehow I doubt either outcome. But both of those scenarios are likelier than that Scalia will experience any advancement of his own private interests, whatever they are, as a result of the decision in the case.

There was a case long ago, some claim, in which personal involvement should have led a justice to recuse himself. The case was Marbury v. Madison, a controversy that would never have happened if Chief Justice John Marshall, still serving as secretary of state in 1801, had succeeded in his duty of delivering William Marbury’s commission as D.C. justice of the peace before the end of the John Adams administration. As chief justice two years later, Marshall participated in deciding (and wrote the opinion in) the case that arose from his minor failure in an administrative capacity. Should he have recused himself? Some modern ethics mavens say “Yes.” But Marshall had no interest–nothing to be gained or lost–by deciding the case for or against Marbury. He quite rightly participated in the case, which we know today as setting the gold standard for the Court’s power to rule on constitutional questions.

But Scalia rode on Cheney’s airplane to Louisiana!, cry the critics. Was that not a gift of some value to Scalia? Perhaps it was a convenience to him, and a luxury compared to commercial airline travel, but for an impropriety to occur, it would seem necessary for the gift to be of some value to the giver as well as the recipient. And as a Cheney spokesman told the L.A. Times, the vice president has the privilege of traveling on vacation at government expense, and of taking guests along with him. There was apparently an available seat on the plane, Cheney offered it, and Scalia used it. We know what to call a gift that costs the giver, benefits the recipient, and influences (or was intended to influence) the recipient’s decision-making. It’s called a bribe. Are Lubet and Gillers ready to call for Attorney General Ashcroft to appoint a special prosecutor to prosecute Scalia for accepting a bribe, and Cheney for giving one? And how different is this–in kind, not degree–from Cheney giving Scalia a lift home in his limousine on a rainy day when the justice’s car won’t start? The whole business of the plane ride seems to be another layer of silliness added to the original empty complaint of crony-hood.

The judicial code says that “a judge should not allow family, social, or other relationships to influence judicial conduct or judgment.” Note that this language does not forbid a judge to have a social relationship with a litigant, nor require him to recuse himself if he does have one–only to prevent such a relationship from influencing his judgment. Common sense suggests, too, a distinction not made here, that familial and social relationships are not quite the same; if Cheney were Scalia’s brother, our expectation would be different.

No one has so much as suggested that Scalia and Cheney had an ex parte conversation about the substance of the case while waiting for ducks to fly overhead. But suppose they did? What could Cheney have said that would influence Scalia’s legal judgment on the merits of the competing arguments? Appellate cases are all about questions of legal error, not about evidence or testimony that the litigants might provide, deny, or contradict in a duck blind. Does anyone seriously suppose that Cheney might have promised to put in a plug for Scalia’s elevation to the chief justiceship following a retirement by Rehnquist if Scalia voted his way? And why would an intelligent fellow like Cheney so stupidly make a promise he can’t be sure to make good?

Much of the judicial code has to do with “appearances of impropriety,” and not without reason. But that may be an important clue to why Supreme Court justices are omitted from its terms. As many have noted since this controversy began, members of the high court fairly commonly socialize in Washington with individuals in the other branches of government whose political interests may wind up being litigated before the justices. Chief Justice Fred Vinson regularly played poker with President Truman, and no one seriously claimed that Vinson should recuse himself from the case involving Truman’s seizure of the nation’s steel mills during the Korean War. Abe Fortas was a Johnson crony. Felix Frankfurter was a confidant of FDR. Neither was ever asked to step aside in a case involving the political interests of his presidential pal.

The point is that the individuals trusted with this much power at the highest levels of our government are expected to be adult professionals, who can distinguish between their social friendships and their duty to their institutional roles. They’re not machine aldermen and night-court judges conspiring to make a drunk-driving charge go away. It would be nice if journalists and “ethics experts” aspired to the same kind of adult attitudes about the business of the Supreme Court. Scalia cheerfully told the L.A. Times the ducks “tasted swell.” Now there’s a guy who has a clear vision of what his trip to Louisiana was all about.

–Matthew J. Franck is chairman of political science at Radford University.