Wampum

Reasonably Questioned, The Prequel

When we last checked in on Justice Antonin Scalia, we discussed his hunting trip with Dick Cheney. Mr. Scalia, along with his daughter, accepted transportation from Mr. Cheney (a flight on Air Force II) paid for with tax payer dollars. Cheney and Scalia were guests at a hunting resort owned by an energy company executive. All told, we figured the gifts to Mr. Scalia could be reasonably estimated at around $10,000.

That trip occurred at a time when Mr. Cheney was (and is) a party to a suit pending before the Supreme Court. That case involves whether or not Mr. Cheney must produce information and documents about the development of energy policy by his Energy Task Force.

Thus, Mr. Cheney used tax payer dollars to create energy policy but does not wish the public to have access to the details of how that policy was made. When the case seeking to force such disclosure is pending before the Supreme Court, Mr. Cheney uses tax payer dollars to fly one of the judges, and the judge’s daughter, to Louisiana for a hunting trip at a hunting refuge owned by an energy executive.

Justice Scalia sees nothing wrong in any of that. He does not think that his socializing with a party to a pending case, his potential ex parte communications with such a party or his acceptance of gifts from the party and an energy executive could reasonably call his impartiality into question.

Mr. Scalia will now have a chance to rethink that position. One plaintiff in the Cheney Energy Task Force case, The Sierra Club, has filed a motion asking that Scalia recuse himself from the case (link via Lambert at Corrente).

Federal judges are to recuse themselves in situations in which their impartiality “can reasonably be questioned.” There is no mechanism to enforce that requirement for Supreme Court Justices. Recusal motions are referred to the individual Justice for consideration by that Justice only. His or her decision about the reasonableness of questions of their own impartiality can not be challenged in any forum. Thus, Justice Scalia will decide whether or not his duck hunting trip with Mr. Cheney has impacted on his own impartiality and neither the Sierra Club nor anyone else can challenge Scalia’s view of his own propriety.

The Los Angeles Times reports that the duck hunting trip to Louisiana was not the first questionable hunting trip Scalia has taken:

Supreme Court Justice Antonin Scalia was the guest of a Kansas law school two years ago and went pheasant hunting on a trip arranged by the school's dean, all within weeks of hearing two cases in which the dean was a lead attorney.

The cases involved issues of public policy important to Kansas officials. Accompanying Scalia on the November 2001 hunting trip were the Kansas governor and the recently retired state Senate president, who flew with Scalia to the hunting camp aboard a state plane…

Specialists in legal ethics differed on whether the Kansas trip presented a conflict of interest for Scalia.

"When a case is on the docket before a judge, the coziness of meeting privately with a lawyer is questionable," said Chicago lawyer Robert P. Cummins, who headed an Illinois board on judicial ethics. "It would seem the better part of judgment to avoid those situations."

Added Monroe Freedman, who teaches legal ethics at Hofstra University: "A reasonable person might question this, and that's the problem." He said Scalia "should have rescheduled the trip until after" the cases were over.

Other experts noted, however, that no one who met Scalia in Kansas was a named litigant in the two cases, in contrast to the trip with Cheney, who is the appealing party in the upcoming energy task force case.

"I'm not troubled by this because of the law school setting," said Stephen Gillers, a New York University law professor. He said he saw no problems with the hunting trip. "The dean was an advocate, not the litigant."…

McAllister said Scalia responded that he would come as scheduled, and that he would not accept a speaking fee and would pay for his own hunting…

The University of Kansas, a state school, paid for Scalia's flight, meals and lodging, according to Scalia's financial disclosure statement.

The next day, the dean dropped the justice off at the airport in Lawrence, Kan., where he met the governor and the former state Senate leader.

Bond, a 14-year state senator who retired at the end of 2000 as president of the Kansas Senate, said he spoke with McAllister before Scalia came to Kansas. "He was bringing out Scalia and he said Scalia really wanted to go pheasant hunting," Bond recalled.

"He said he [McAllister] couldn't go because he was going to have a case before the court and it would be inappropriate. He said he had no problem with bringing him in and having him speak to students, but that he could not go out and socialize with him."

Bond spoke to Graves. The former governor, in a separate interview, said he was honored to have the chance to go hunting with a Supreme Court justice.

Graves said he and Bond decided to take Scalia to the Ringneck Ranch near Beloit, Kan., which was owned by Keith Houghton, a friend of the governor.

Graves said they flew from Lawrence on the governor's official plane, which he described as a King air prop, and returned on the same plane after hunting. Scalia reimbursed the state $121.87 for the round trip…

Justice Scalia provided a written response to the L.A. Times article:

I was not the guest of Stephen McAllister, but of the University of Kansas Law School. The invitation, in fact, had come not from Stephen McAllister but from his predecessor as dean of the law school, Michael Hoeflich. That invitation was issued in December of 1999 and accepted (by phone) some time before October of 2000 — long before the October and November, 2001, cases you refer to were on our docket. My travel expenses to Lawrence were reimbursed by the University of Kansas, not by the state. I flew with the governor and others on the governor's plane from Lawrence to Beloit and back, and promptly reimbursed the state of Kansas for the cost.

I do not think that spending time at a law school in which the counsel in pending cases was the dean could reasonably cause my impartiality to be questioned. Nor could spending time with the governor of a state that had matters before the court. Indeed, if the latter were so, Supreme Court justices would be permanently barred from social contact with all governors, since at any given point in time virtually all states have matters pending before us, either in accepted cases or in petitions for certiorari …

The Kansas episode and Scalia’s response raise a number of issues. First, Scalia should simply stop his insipid whining. Other than playing center field in a World Series, he has one of the best jobs in the world. He has life tenure with a constitutional provision providing that his pay can not be cut. He gets to help shape the law for generations to come. He even gets to decide Presidential elections. Scalia’s whining that he would not be able to socialize with governors is pathetic.

The comments to Cannon 2a of the Code of Conduct for United States Judges states that:

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

Scalia should willingly accept the restriction that he not take hunting trips with governors whose states have matters pending before him. It is true that he might have to shoot birds with riff raff like Federalist Society members or CEOs of major corporations or even other Federal Judges instead of governors, but Poor Tony will just have to get over it. There are more than 275 million Americans. For Scalia to whine that he can not go hunting with 50 of them who happen to be Governors is unseemly.

The second issue involves reimbursement for the cost of the flight from the law school to the hunting grounds. Scalia writes:

I flew with the governor and others on the governor's plane from Lawrence to Beloit and back, and promptly reimbursed the state of Kansas for the cost.

Why did he reimburse the cost? It can only be that he thought it improper to accept a gift from the tax payers of Kansas for a flight on the governor’s airplane while Kansas had a case pending before him.

If that is the standard, should not Scalia then reimburse the American taxpayers for the cost of the flight he and his daughter took on Air Force II with Dick Cheney? Scalia has defended his hunting trip with Cheney on the grounds that Cheney has not been sued in his individual capacity. The governor of Kansas was not a named party to the suit either in an individual or official capacity.

Cheney was named as a defendant. If Scalia felt that reimbursement was necessary for the Kansas trip, reimbursement is even more necessary for the Cheney/Louisiana trip.

Third, Dean McAllister of the University of Kansas set up the hunting trip but did not accompany Scalia on that trip. Why not? According to the Times:

He said he [McAllister] couldn't go because he was going to have a case before the court and it would be inappropriate. He said he had no problem with bringing him in and having him speak to students, but that he could not go out and socialize with him."

If it was inappropriate for Dean McAllister, as a lawyer to socialize with Scalia how can it possibly be appropriate for Dick Cheney, as a named defendant, to socialize with Scalia? Please note that the one and only legal ethics expert quoted by the Times to the effect that the Kansas trip was not troublesome said the following:

"I'm not troubled by this because of the law school setting," said Stephen Gillers, a New York University law professor. He said he saw no problems with the hunting trip. "The dean was an advocate, not the litigant."

Dick Cheney is the litigant.

Finally, how many people must perceive a problem before it is clear that Justice Scalia’s impartiality could reasonably be questioned? Academics are questioning Justice Scalia's impartiality. Law Professor Stephen Gillers sees a problem with the Cheney trip but not the Kansas trip.

It seems that Dean McAllister would see a problem in the Cheney situation because he felt that socialization would be inappropriate for an advocate and socialization with a party is worse.

The Times quotes experts Robert P. Cummins, who headed an Illinois board on judicial ethics and Monroe Freedman, who teaches legal ethics at Hofstra University as seeing a problem with the Kansas episode when Scalia reimbursed the costs. Once again, the Cheney situation is worse.

Newspapers see a problem. The Los Angeles Times editorial board sees a problem. Indeed, according to Newsday, “Twenty of the country's 30 largest newspapers have called on Scalia to recuse himself because of the vacation Scalia and Cheney took, the Sierra Club told the court in a filing earlier this week that included a sampling of editorials.”

Apparently, Scalia believes all of those critics are being unreasonable. There is a story about two proud parents watching a parade in which their son is a member of the marching band. As the band goes by, the mother asks the father, “Why is everyone out of step except Tommy?”

Why is everyone unreasonable except Poor Tony?

Posted by Dwight Meredith at March 3, 2004 03:21 PM | TrackBack