Ducking Recusal: Justice Scalia's Refusal to Recuse Himself from Cheney v. United States District Court for the District of Columbia, 541 U.s. 913 (2004), Andthe Need for a Unique Recusalstandard for Supreme Court Justices

• Publication year: 2021

84 Nebraska L. Rev. 650. Ducking Recusal: Justice Scalia's Refusal to Recuse Himself from Cheney v. United States District Court for the District of Columbia, 541 U.S. 913 (2004), andthe Need for a Unique RecusalStandard for Supreme Court Justices

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Ducking Recusal: Justice Scalia's Refusal to Recuse Himself from Cheney v. United States District Court for the District of Columbia, 541 U.S. 913 (2004), andthe Need for a Unique RecusalStandard for Supreme Court Justices

TABLE OF CONTENTS

I. Introduction ....................................................... 651
II. Background of the Recusal Issue Facing Justice Scalia ............. 652
A. The Trip ....................................................... 652
B. The Writ ....................................................... 653
C. The Problem .................................................... 654
D. The Federal Statute ............................................ 655
E. Justice Scalia's Response to the Motion to Recuse .............. 657
III. Analysis of Justice Scalia's Memorandum in Response to the Motion for Recusal in Cheney v. United States District Court for the District of Columbia ............... 661
A. The Prevalence of the Duty-to-Sit Concept in Supreme Court Recusal Decisions ............................... 661
B. Justice Scalia Failed to Apply the § 455(a) Recusal Standard in Reaching His Final Decision ....................... 663
IV. Congress Should Adopt a Distinct Recusal Policy for Supreme Court Justices in Order to Ensure the Public's Continued Confidence in the Impartiality and Integrity of the Highest Court .............................................. 666
A. Permit All Nine Justices to Vote on the Recusal Question ....................................................... 667
B. The Alternative Justice ........................................ 670

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V. Conclusion ......................................................... 672

I. INTRODUCTION

Perched in a duck blind on the bayou in southeastern Louisiana, waiting in anticipation for the next opportunity to raise his shotgun and take aim at incoming fowl, Justice Scalia could not have possibly anticipated that in a few short months, this hunting trip would be the target of an American media firestorm of scrutiny. Unless you are an avid watcher of the Outdoor Living Network, a Supreme Court Justice's duck hunting trip is hardly riveting news worthy of the attention of virtually every American media outlet. Unless, of course, Vice President Cheney is the Justice's special guest on this trip, and just a few weeks prior, the Supreme Court granted a writ of certiorari to hear a case in which the Vice President is a named party.

When the media caught wind of the facts surrounding this trip, there was an immediate and nationwide call for the Justice to recuse himself from the case, culminating in a motion for recusal filed by the Sierra Club.(fn1) Relying on the federal statutory recusal standard, which requires any federal judge to recuse himself if his partiality can reasonably be called into question, the Sierra Club cited several news sources from across the country unanimously calling for the Justice's recusal.(fn2)

Justice Scalia's response to the Sierra Club's motion for recusal was unprecedented. Issuing a twenty-one page memorandum, Justice Scalia dissected the Sierra Club's motion, pointing mainly to the blatant factual and legal errors contained in the motion as support for his conclusion that someone could not reasonably question his ability to decide the case involving the Vice President impartially.(fn3) Justice Scalia bolstered his position further by citing a substantial number of historical relationships between Supreme Court Justices and members of the Executive and Legislative branches, arguing that his relationship with the Vice President was no different than similar friendships in the past. Thus, there were no unusual circumstances necessitating recusal.(fn4)

Justice Scalia's response, though a compelling and thorough dismissal of the arguments raised by the Sierra Club's motion for recusal,

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fails to apply the proper statutory recusal standard with which federal judges and Justices are expected to gauge the appropriateness of recusal. Furthermore, Justice Scalia's partial reliance on the duty-tosit principle, abandoned by Congress when it amended the federal recusal standard in the early 1970s, is a further indication that something is amiss with his application of federal recusal policy.(fn5)

Part II of this Note discusses a more detailed factual background surrounding the Louisiana hunting trip at the center of the Justice Scalia recusal controversy and the Supreme Court's grant of certiorari a few weeks earlier. Included in this discussion is a thorough analysis of the federal statutory recusal standard that Justices must apply when deciding recusal questions. Part III analyzes Justice Scalia's memorandum in response to the motion for recusal, revealing both the continued presence of the duty-to-sit principle in Supreme Court recusal decision-makings, and the explicit misapplication of the federal recusal standard by Justice Scalia. Part IV illustrates the potential consequences of permitting the Supreme Court to continue to disregard the clear legislative intent behind the federal judicial recusal policy, and suggests two alternatives designed to address the policy concerns voiced by the Court as justification for this continued disregard of the federal statute.

II. BACKGROUND OF THE RECUSAL ISSUE FACING JUSTICE SCALIA

A. The Trip

On January 5, 2004, United States Supreme Court Justice Antonin Scalia accompanied Vice President Richard Cheney on a governmentowned jet to Louisiana to enjoy a few days of duck hunting on the bayou.(fn6) Although Justice Scalia had been on this same trip for the past five years, it was the previous year that he learned that his Louisiana friend and host was an admirer of Vice President Richard Cheney.(fn7) Because Justice Scalia was "well acquainted"(fn8) with the Vice President "from their years serving together in the Ford administration,"(fn9) and because Justice Scalia was specifically aware that the Vice President was an avid duck-hunter, he extended an invitation to the Vice President in the spring of 2003 to accompany him the subsequent winter.(fn10) Vice President Cheney accepted the invitation and even offered space on his government plane for the trip, pending availability.

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There was free space, and so Justice Scalia, accompanied by two other guests, joined the Vice President on his plane for the journey to Louisiana.(fn11)

Justice Scalia described the setting of the hunting trip as simply not intimate.(fn12) This description was based on the fact that there were a total of thirteen hunters on this trip and several other staff members present,(fn13) all of whom ate together and slept in "rooms of two or three, except for the Vice President, who had his own quarters."(fn14) Justice Scalia and Vice President Cheney never hunted together and were generally never alone except "for instances so brief and unintentional, . . . walking to and from a boat, perhaps, or going to or from dinner."(fn15) The Vice President hunted for two days and then departed while Justice Scalia stayed and hunted a few more days before returning to Washington on a commercial airline from New Orleans.(fn16)

B. The Writ

On December 15, 2003, roughly three weeks prior to the duckhunting trip described above, the Supreme Court of the United States granted the Vice President's petition for a writ of certiorari.(fn17) In 2001, Judicial Watch, Inc. and the Sierra Club filed separate actions against the National Energy Policy Development Group ("NEPDG")(fn18) and individual group members including the board's chair, Vice President Cheney, alleging that the NEPDG failed to comply with the Federal Advisory Committee Act ("FACA").(fn19) Specifically, Judicial Watch, Inc. and the Sierra Club alleged that the Vice President ap

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pointed non-federal employees to the group, thereby requiring that group to make public all reports, records, or other documents used pursuant to FACA.(fn20) After consolidating the separate actions, the district court denied the defendants' motion to dismiss and subsequently approved the plaintiffs' discovery plan.(fn21) Although the government generally complied with the discovery plan, a motion for a protective order was filed for documents relating specifically to the Vice President.(fn22) The court first denied the government's motion for protective order and then denied a request by the defendants for the court to certify an interlocutory appeal on this issue.(fn23) The government subsequently filed an emergency motion for writ of mandamus in the United States Court of Appeals for the District of Columbia Circuit seeking an order vacating the lower court's discovery orders and that the Vice President be dismissed as a defendant from the action.(fn24) The court of appeals dismissed the defendants' interlocutory motion, but in December, 2003, the Supreme Court granted a writ of certiorari on this discovery issue, and the case was set for argument.(fn25)

C. The Problem

After learning from the media that Vice President Cheney, a named party in an action before the Supreme Court, went with Justice Scalia on a hunting trip shortly after the Court granted certiorari on the action, the Sierra Club(fn26) filed a motion for recusal with the Supreme Court, asking that Justice Scalia not participate in any proceedings concerning whether the Vice President should be compelled to disclose specific documents.(fn27) The Sierra Club premised its motion on the recusal standard for federal judges found at 28 U.S.C. §455 (a), arguing that the vast majority of America's newspapers, representing the voice of...