Despite pressure from congressional Democrats, newspaper editorials and professors of legal ethics, Supreme Court Justice Antonin Scalia said again that he will not recuse himself from a case involving his duck-hunting partner on a recent vacation: Vice President Cheney.
Scalia budged not one inch during the question-and-answer period after a speech Tuesday at Amherst College in Massachusetts. According to the Associated Press, the justice told an audience of about 600 that Cheney is being sued in his official role and so their personal friendship is not relevant.
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"It did not involve a lawsuit against Dick Cheney as a private individual," Scalia said. "This was a government issue. It's acceptable practice to socialize with executive branch officials when there are not personal claims against them. That's all I'm going to say for now. Quack, quack."
Scalia traveled in January with Cheney on a government Gulfstream jet to a duck-hunting retreat in Louisiana. Along with seven others, they hunted for several days as guests of Wallace Carline, owner of Diamond Services Corp., an oil services firm.
Three weeks before the trip, the Supreme Court agreed to hear a case titled in re: Richard Cheney, in which two groups have sued the vice president to force the release of records relating to his task force on energy policy. The Sierra Club and Judicial Watch suspect that Cheney, former chief executive of the oil services giant Halliburton Corp., was unduly influenced by his former friends and colleagues in the energy business -- including Kenneth Lay, then head of the scandal-wracked Enron Corp.
A lower court ordered Cheney to turn over the records. Solicitor General Theodore B. Olson has challenged that order on Cheney's behalf.
Since the trip was made public, first by AP and then in detail by the Los Angeles Times, there have been widespread calls for Scalia to recuse himself from the Cheney case. Democrats in the Senate and the House of Representatives have written to Chief Justice William H. Rehnquist asking him to intervene. Rehnquist pointedly declined.
At the Amherst event, about a dozen protesters in black armbands called attention to the controversy. One carried a sign that said "Let's go hunting." An Amherst administrator who attended the event said Scalia may have been anticipating that the protesters would start quacking when he preempted them with his own "quack, quack."
Federal law requires judges to remove themselves from cases in which they have a conflict of interest or when their "impartiality might reasonably be questioned." In the lower courts, a judge's refusal to do so can be appealed. But Supreme Court justices decide for themselves when to step away from a case. In recent years, Scalia has recused himself a number of times from cases involving the Department of Labor, where his son worked.
Last fall, he distressed some of his conservative admirers by recusing himself from a case challenging the words "under God" in the Pledge of Allegiance. Scalia did so after he was quoted discussing the issue at a gathering in Virginia.
The justices are not required to explain their reasons for recusing, or not recusing, themselves. Scalia's answer to the Amherst question was his first public response to the controversy. In earlier written answers to the Los Angeles Times, he said, "I do not think my impartiality could reasonably be questioned."
One of the plaintiff groups, Judicial Watch, agrees with Scalia. "We do not think there is a conflict of interest or an appearance of conflict," the group's president, Tom Fitton, has said.
But Sierra Club Washington legal director David Bookbinder said Wednesday that his group continues to study the issue and may ask formally for Scalia to recuse himself sometime in the next month.
"We're still looking at the facts and seeing if anything new and interesting pops up," Bookbinder said. "We are carefully researching the law," he added, "because if you're going to move to recuse a Supreme Court justice, you better be pretty sure of yourself."
