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Watchdog groups question Cheney, Scalia hunting trip

Supreme Court justice denies doing anything improper

From Bill Mears
CNN Washington Bureau

Vice President Dick Cheney invited Supreme Court Justice Antonin Scalia to go duck hunting in Louisiana earlier this month.
Vice President Dick Cheney invited Supreme Court Justice Antonin Scalia to go duck hunting in Louisiana earlier this month.

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WASHINGTON (CNN) -- Justice Antonin Scalia has not indicated whether he will pull out a of an upcoming Supreme Court case involving Vice President Cheney, following reports the two recently went on a hunting trip and had dinner together.

Scalia denies doing anything improper.

Groups involved in a lawsuit against Cheney over his handling of an energy task force Monday questioned Scalia's impartiality, but so far have not said the justice should recuse himself from the executive privilege case.

"In a major constitutional case where the vice president's personal conduct is an issue, we are concerned," said David Bookbinder, Washington legal director for the Sierra Club, which helped bring the suit. "It certainly raises questions about the appearance of impropriety."

Bookbinder said his group is exploring its legal options.

Cheney invited Scalia, an old friend, to Louisiana earlier this month to hunt waterfowl on a private reserve. The trip occurred three weeks after the court agreed to hear the case, scheduled for sometime in April. Details of the trip were first reported by the Los Angeles Times.

The two also had a private dinner with Defense Secretary Donald Rumsfeld on Maryland's Eastern Shore in November, when the justices were still considering Cheney's appeal.

Cheney is fighting a federal court's order that he release internal files of a task force he headed for the Bush administration. A lawsuit claims he made improper contacts with energy industry lobbyists when developing government policy.

The White House has argued the courts and Congress have no business making inquiries, even limited ones, into the decision-making power of federal agencies and offices. Cheney has said executive power needs to be increased in such confidentiality cases.

Cheney's task force met throughout in 2001 and developed a report recommending opening more federal land to oil, natural gas and coal development. That includes the remote Arctic National Wildlife Refuge in northeast Alaska. Such development has become a political rallying point for both environmentalists and pro-energy forces.

Among the task force advisers was former Enron Chairman Kenneth Lay.

The energy bill crafted by the administration remains stalled in Congress.

A lawsuit filed by Judicial Watch, a private watchdog group, and the Sierra Club, an environmental organization, seeks to gather records related to the task force.

Attorneys for the groups say they want to know whether lobbyists for the energy industry privately helped craft the U.S. government's long-term energy policy.

Scalia responds

Scalia dismissed the ethical questions. In a letter to the Times about the hunting trip, he wrote, "I do not think my impartiality could reasonably be questioned." He also said, "Social contacts with high-level executive officials (including Cabinet members) 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."

Supreme Court spokeswoman Kathleen Arberg confirmed Scalia's comments, and said the justice would have no further statements on the matter.

There was no immediate reaction from the vice president's office.

Federal laws dictate a judge or justice should remove himself from a case if there are questions about his or her fairness or impartiality. But a number of experts in legal ethics said social contacts would not of themselves mean Scalia should drop out.

"Case law doesn't support recusal in this case. It doesn't raise alarm bells with me," said James Moliterno, a College of William and Mary law professor, and author of a book on judicial ethics. "There may be a political appearance of impropriety, but it ought to take a lot for a Supreme Court justice to remove himself from a case. It would take an extraordinarily close relationship."

Edward Lazarus, a former Supreme Court clerk, noted different justices have differing standards about such issues. "The law on this is really rather broadly formed," said Lazarus, author of "Closed Chamber," an inside account of the court. "But there is the very deeply held belief in the court that they do nothing that gives the appearance of impropriety. And I think in this case, Cheney may have gone over the line by inviting him [Scalia] down to hunt. Scalia, in a reflective moment, may be thinking, 'I shouldn't have done that.'"

Supreme Court justices have wide discretion to decide for themselves whether to recuse themselves from a case, since their decisions cannot be appealed.

"It may be up to his colleagues to put enough private pressure on him" to pull out of the case, said Bookbinder, who added he did not know if that would be the case.

Scalia has already excused himself from another high-profile case to be argued this March, over whether public school children should be forced to hear the Pledge of Allegiance recited in the classroom.

At a Religious Freedom Day rally a year ago, the conservative Scalia reportedly said any changes to the pledge should be done "democratically," through the legislatures, not the courts. He also reportedly said removing references to God from public forums would be "contrary to our whole tradition." After the case was accepted for review, Scalia announced he would not take part in deciding it, but the court offered no reason for his decision.

Other justices have recused themselves from cases, often because a relative was involved in a case, or because of potential financial conflicts.

Cheney is not personally liable in the energy task force case and would not face financial damages if he loses.

The case is Cheney v. USDC for District of Columbia (03-0475).

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