After weeks of critical editorials, embarrassing cartoons and late-night talk-show jokes, Supreme Court Justice Antonin Scalia issued a twenty-one-page memorandum on March 18 to explain why his January duck-hunting trip with Vice President Cheney, and his free ride to Louisiana on Cheney's plane, do not disqualify him from hearing Cheney's appeal of a case that could affect the Vice President's political future. The harm from this unpersuasive conclusion extends beyond this one case. Scalia's opinion tells thousands of federal and state judges that it can be OK to vacation with friends who have cases before them and to accept the generosity of those friends while their cases are pending. Though nothing can now undo Scalia's decision to sit in Cheney's case, it is not too soon to adopt remedies that will restore confidence to the credibility of recusal rulings.
Nine days after taking office, George W. Bush asked a study group to propose a national energy policy and named Cheney to head it. Operating in secret, the group made recommendations, which the President accepted. The Sierra Club and Judicial Watch sued Cheney and others to release the group's records so they could learn the extent of energy industry influence. Unable to get the case dismissed in lower courts, Cheney went to the Supreme Court, which took the appeal December 15. Twenty-one days later, Scalia and Cheney went on their long-planned hunting trip. Accompanied by Scalia's son and son-in-law, they flew on the Vice President's plane to Louisiana, where nine other hunters joined them. Cheney stayed two days. Scalia's group stayed longer and flew home commercially. The Sierra Club (but not Judicial Watch) asked Scalia to recuse himself, citing a thirty-year-old federal law that mandates recusal of any federal judge whose "impartiality might reasonably be questioned."
Scalia's opinion refusing to step aside dismisses the plane flight to Louisiana, explaining that it saved him no money. He writes that in order to get home, he and his relatives had to buy round-trip tickets anyway. So financially the whole episode was a wash. But money is not the issue. Anyone lucky enough to get bumped to first class because an airline has overbooked coach knows that Cheney gave the Scalia group something of value. Scalia's opinion also claims that the appeal is not really about Cheney, who is sued only in his "official capacity," but about the power of the Vice President and the meaning of complex statutes. Ignored is the fact that rejection of the appeal can hurt Cheney politically in an election year if the secret records reveal a pro-industry bias in Cheney's leadership of the study group. That may also explain why Cheney stonewalled the nonpartisan General Accounting Office when it asked him for the same information.
An opposing argument could reveal these and other flaws in Scalia's logic and might well persuade a disinterested judge to reach a contrary conclusion. Judges have been disqualified for much less. But there will be no opposing argument or disinterested judge. Scalia is both the advocate and the judge here because Supreme Court Justices get final say on when the recusal law applies to them. Scalia's eight colleagues on the Court do have the power to review his decision, just as they have reviewed similar decisions of lower court judges. But it is a power they do not use.
A proverb tells us that no person should judge his or her own cause. Yet on this issue, at least, the Justices judge themselves. The best way to change that is to require that recusal motions get assigned to someone other than the subject. Copying the practice of some lower courts, the Supreme Court can refer recusal motions to another Justice or a panel of three Justices. And to encourage recusal, if warranted, we must also make it less disruptive of the Court's business. Justices often resist recusal by citing (as Scalia did here) the need to avoid a 4-4 division on the Court. An equally divided Court means the country loses the benefit of binding precedent after much time and energy. To meet that concern, Congress should copy a system some high state courts use: In the event a Justice is disqualified, one of the thirteen chief judges of the federal courts of appeals, chosen by lot, is authorized to fill in.
Of course, the best remedy would have avoided the problem entirely. Scalia should have canceled the trip when Cheney's case appeared on his docket back in September. But judging from the dismissive, often sarcastic tone of Scalia's opinion, that option was never considered.