ustice
Antonin Scalia of the United States Supreme Court today bluntly rejected
demands that he step aside in a case involving Vice President Dick Cheney,
mocking criticism that a duck hunting trip the two were on in January
suggested he would be biased toward his longtime friend.
Hours later, the Sierra Club, which had formally asked Justice Scalia not
to participate in a case it had brought against the vice president, said it
would take no more legal action against the justice, even though it believed
his ``recusal was still warranted'' to ensure public faith in the integrity
of the court.
In a 21-page memorandum filled with scorn and with lessons in the ways of
Washington, Justice Scalia wrote that if people assumed a duck hunting trip
would be enough to swing his vote, ``the nation is in deeper trouble than I
had imagined.''
He said that throughout American history, justices have been friends with
high-ranking government officials, and that as recently as Christmas other
justices socialized with Mr. Cheney at the vice president's home.
``A rule that required members of this court to remove themselves from
cases in which the official actions of friends were at issue would be
utterly disabling,'' Justice Scalia wrote.
During the hunting trip to Louisiana, which the memorandum said involved
13 hunters as well as Mr. Cheney's security detail, ``I never hunted in the
same blind with the vice president,'' he said.
``Nor was I alone with him at any time during the trip,'' he continued,
``except, perhaps, for instances so brief and unintentional that I would not
recall them - walking to or from a boat, perhaps, or going to or from
dinner. Of course we said not a word about the present case.''
Three weeks before the trip, the court agreed to hear an appeal of a case
in which the Sierra Club sought information about who had participated in
private meetings of Mr. Cheney's energy task force in 2001. Justice Scalia's
decision to go hunting with someone who had litigation pending before the
court prompted editorial pages across the country to echo the Sierra Club's
belief that the public might believe he could not render an impartial
ruling.
David Bookbinder, the Washington legal director of the Sierra Club, said
in a telephone interview today that ``it would have been terrific'' if
Justice Scalia had explained in January how little contact he had had with
Mr. Cheney during their outing. Bookbinder cited specifically Justice
Scalia's statement in the memorandum that flying to Louisiana on Mr.
Cheney's jet did not constitute accepting a prohibited gift because he flew
back on a commercial airline, buying a round-trip ticket and not saving ``a
cent.'' If the public had known all the details, the outcry might not have
been as great, Mr. Bookbinder said.
He added, however, that Justice Scalia had failed to be forthcoming
earlier, allowing the perception to grow that he might not be impartial in
the Cheney case. Therefore, Mr. Bookbinder said, he still should step aside.
In his memorandum, Justice Scalia suggested that he had an obligation to
recuse himself if the personal fortune or freedom of a friend were at
stakebut not if the issue was a friend's official actions, as he argued was
the case with Mr. Cheney.
He said the Sierra Club had failed to cite any precedent in which a
justice had recused himself from a case involving a friend's official
action. The club, instead, had relied largely on newspaper editorials that
had questioned whether he could be impartial in the Cheney case, he said.
``The implications of this argument are staggering,'' Justice Scalia
wrote. ``I must recuse because a significant portion of the press, which is
deemed to be the American public, demands it.'' He went on to point out what
he said were mistakes in numerous editorials about the hunting trip, citing
newspapers by name.
Justice Scalia has excused himself from cases before. He decline to
participate in a case this year that involved whether the words ``under
God'' in the Pledge of Allegiance are unconstitutional. He had expressed a
view about the case before it reached the Supreme Court.