Vice President Cheney and Supreme Court Justice Antonin Scalia spent part of last week duck hunting together at a private camp in south Louisiana just three weeks after the Supreme Court agreed to take up the vice president's appeal in lawsuits over his handling of the administration's energy task force.
While Scalia and Cheney are avid hunters and longtime friends, several experts in legal ethics questioned the timing of their trip and said it raised doubts about Scalia's ability to judge the case impartially.
But Scalia rejected that concern yesterday , saying "I do not think my impartiality could reasonably be questioned."
Federal law says "any justice or judge shall disqualify himself in any proceeding in which his impartiality might be questioned." For nearly three years, Cheney has been fighting demands that he reveal whether he met with energy industry officials -- including then-Enron Corp. Chairman Kenneth L. Lay -- when he was formulating the president's energy policy.
A lower court ruled Cheney must turn over documents detailing who met with his task force, but Dec. 15, the Supreme Court announced it would hear his appeal. The justices are to hear arguments in April in the case of "in re Richard B. Cheney."
In a written response to an inquiry from the Los Angeles Times about the hunting trip, Scalia said: "Cheney was indeed among the party of about nine who hunted from the camp. Social contacts with high-level executive officials (including Cabinet officers) have never been thought improper for judges who may have before them cases in which those people are involved in their official capacity, as opposed to their personal capacity. For example, Supreme Court Justices are regularly invited to dine at the White House, whether or not a suit seeking to compel or prevent certain presidential action is pending."
Cheney does not face a personal penalty in the pending lawsuits. He could not be forced to pay damages, for example.
But the suits are not routine disputes about the powers of Cheney's office. Rather, the plaintiffs -- the Sierra Club and Judicial Watch -- contend that Cheney and his staff violated an open-government measure known as the Federal Advisory Committee Act by meeting behind closed doors with outside lobbyists for the oil, gas, coal and nuclear industries.
New York University law professor Stephen Gillers said Scalia should have skipped going hunting with Cheney this year.
"A judge may have a friendship with a lawyer, and that's fine. But if the lawyer has a case before the judge, they don't socialize until it's over. That shows a proper respect for maintaining the public's confidence in the integrity of the process," said Gillers, who is an expert on legal ethics. "I think Justice Scalia should have been cognizant of that and avoided contact with the vice president until this was over. And this is not like a dinner with 25 or 30 people. This is a hunting trip where you are together for a few days."
The pair arrived Jan. 5 on Gulfstream jets and were guests of Wallace Carline, the owner of Diamond Services Corp., an oil services company in Amelia, La. The Associated Press in Morgan City, La., reported the trip on the day the vice president and his entourage departed.
"The duck hunting was lousy. Our host said that in 35 years of duck hunting on this lease, he had never seen so few ducks," Scalia said in his written response to the Times. "I did come back with a few ducks, which tasted swell."
Northwestern University law professor Steven Lubet, who teaches judicial ethics, said he was not convinced Scalia must withdraw from the Cheney case but that the trip raised a number of questions.
"It's not clear this requires disqualification, but there are not separate rules for longtime friends," he said. "This is not like a lawyer going on a fishing trip with a judge. A lawyer is one step removed. Cheney is the litigant in this case. The question is whether the justice's hunting partner did something wrong. And the whole purpose of these rules is to ensure the appearance of impartiality in regard to the litigants before the court."
The code of conduct for federal judges sets guidelines for members of the judiciary, but it does not set clear-cut rules. "A judge should . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary," it says. "A judge should not allow family, social or other relationships to influence judicial conduct or judgments . . . or permit others to convey the impression that they are in a special position to influence the judge."
In the lower courts, litigants may ask a judge to step aside. And if the request is refused, they may appeal to a higher court.