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Response to Hit Pieces on Scalia -- Part 3


Adam Cohen’s fourth charge in his TimesSelect (subscriber-only) attack on Justice Scalia, and what he considers “[w]orst of all,” is that Scalia supposedly “refuses to abide by the basic principles of recusal.”  This would indeed be a serious charge if it were true.  But it is not.  (Here are Part 1 and Part 2 of my response to Cohen.)


Cohen complains about Scalia’s participation in two cases, the Court’s 2004 ruling on the Sierra Club’s challenge to the White House’s energy task force—headed by Vice President Cheney—under the Federal Advisory Committee Act and the pending Hamdan military-commissions case.  I will address the Sierra Club case in this post and (when I find time) Hamdan in a later one.


The essence of the recusal argument in the Sierra Club case is that Cheney was a defendant in the case (in his official capacity); that, while the case was pending, Scalia and Cheney took part in the same duck hunt in Louisiana and Scalia (and his son and son-in-law) accepted a ride to Louisiana on Cheney’s Air Force Two; and that Scalia’s impartiality in the case could therefore “reasonably be questioned.”  Scalia explained his decision not to recuse in a 21-page memorandum that he issued in March 2004.  Cohen labels the memorandum “thoroughly unconvincing” and cites as authoritative an article that law professor Monroe Freedman wrote on the topic.


Let’s consider Cohen’s and Freedman’s critiques of Scalia’s memorandum.  Scalia sets forth the position that friendship with a government official sued in his official capacity has traditionally not been a ground of recusal.  As he explains it, the case is a “run-of-the-mill legal dispute about an administrative decision” and does not bear on Cheney’s reputation and integrity.  Scalia specifically acknowledges that the case may have “political consequences,” but spells out why he thinks it would be “quite wrong” for judges to assess such consequences and base their recusal decisions on them.  But rather than present and confront Scalia’s actual argument, Cohen gives his readers the impression that Scalia was arguing that the case was insignificant politically.  Such an argument—an argument that Scalia did not make—“is hard to take seriously,” Cohen states, since opponents of the Bush-Cheney ticket “were using the energy task force as a political weapon in the 2004 election.”  


Cohen also contends that Scalia’s “free ride” on Air Force Two required recusal.  Oddly, Cohen does not disclose to his readers, much less contest, Scalia’s point that he did not “save[] a cent by flying on the Vice President’s plane” (because, for the return flight, he had purchased round-trip tickets).  Instead, ignoring the much-reduced incremental value of Scalia’s ride on Air Force Two, he declares “the value of three luxury plane rides” to be “not insubstantial.”  Scalia further explains that various ethics rules treat as insignificant the social courtesy of “space available” flight on government airplanes.  But Cohen tells his readers only that Scalia “dismissed objections with the most cliched defense of bribe-takers—that it was absurd to think he could be ‘bought so cheap.’” 


Finally, Cohen cites Freedman’s observation that lots of newspapers had run editorials calling for Scalia’s recusal and that it necessarily follows that reasonable persons might question Scalia’s impartiality.  But Cohen and Freedman conveniently neglect to consider whether the hypothetical reasonable person should be reasonably well informed and unbiased. 


Although Cohen makes no further specific use of Freedman’s supposedly authoritative article, a review of that article (which, at a mere 2200 words or so of text, is a rather short essay) hardly bolsters confidence in Freedman’s judgments.  Freedman’s lead argument is that it doesn’t matter that Scalia says that he didn’t discuss the case with Cheney:  because they were on the same duck-hunting trip, “a reasonable person might nevertheless question whether ex parte communications might have occurred.”  The principle underlying that assertion—that the opportunity for ex parte communications justifies a “reasonable person” in suspecting that they occurred—cannot be taken seriously, since telephones and e-mail capacity provide virtually everyone that opportunity all the time.


Freedman also asserts that Cheney’s “reputation and integrity” were at stake because the basic issue was whether Cheney had “been lying about how the [energy task force] was constituted.”  Freedman seems not to understand that the legal question under FACA was whether certain private individuals were to be deemed de facto members of the task force.  That question did not implicate Cheney’s veracity. 

Freedman also contends that the “established principles and practices” Scalia cites are irrelevant because in 1974 the statute substituted the “reasonable person” standard for a subjective standard that had previously existed.  But the relevant question, which Freedman oddly neglects, is whether a reasonable person’s judgment about impartiality should be informed by established principles and practices.

Cohen laughably asserts that the “law of recusal is clear.”  What is clear is that Cohen and Freedman have failed to establish their charge that Scalia clearly was obligated to recuse himself from the Sierra Club case. 

As for Cohen’s charge that Scalia “may have curried favor with Vice President Cheney in the hope that it would help him to be nominated” as Chief Justice:  One other case that was pending at the time of Scalia’s duck hunt was the Hamdi case, which presented the question of the legality of the military’s detention of an enemy combatant.  When the Court issued its ruling in that case in late June 2004, Scalia, in an opinion that Justice Stevens joined, adopted the position most restrictive of executive authority.  Hardly a way to curry favor with VP Cheney. 

Afternote:  I haven’t done a survey of academics’ view on the question, largely because I don’t think that it would be probative of anything (except, perhaps, the bias of legal academics), but I have just run across this essay by Columbia law professor Michael Dorf, who is certainly no conservative.  Dorf, while complaining of the elitism of Supreme Court justices, concludes that “Scalia was right not to recuse himself, and he has persuasively explained the grounds for his decision.”   

Tags: Whelan


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