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Rehnquist dismisses congressional concern over Cheney case

From Bill Mears
CNN Washington Bureau

Supreme Court Justice Antonin Sclaia
Supreme Court Justice Antonin Sclaia

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WASHINGTON (CNN) -- Chief Justice William Rehnquist Monday dismissed congressional calls for fellow Justice Antonin Scalia to recuse himself from Supreme Court consideration of a coming case involving Scalia's friend, Vice President Dick Cheney.

In a letter to senators Patrick Leahy and Joe Lieberman, as well as the other eight justices, Rehnquist labeled as "ill considered" any demands Scalia remove himself from considering the important executive privilege case amid questions about his impartiality.

The two Democratic lawmakers last week asked Rehnquist to answer questions about recusal procedures, after reports Scalia and Cheney recently went on a hunting trip and had dinner together. (Full story)

Rehnquist offered no conclusions about the issue, but said Scalia alone had the power to recuse himself, at his discretion. "It has long been settled that each justice must decide such a question for himself," he said, although he added that justices often consult among themselves when such issues are raised.

Cheney invited Scalia, an old friend, down to Louisiana earlier this month to hunt waterfowl on a private reserve. It came 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.

Scalia earlier 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."

Leahy late Monday said other federal courts had developed oversight procedures when recusal questions are raised.

He said the issue "is one best raised before a case is decided, in the interest of maintaining the public's confidence in our judicial system. Because Supreme Court decisions cannot be reviewed, waiting until after a case is decided needlessly risks an irreversible, tainted result and a loss of public confidence in our nation's highest court."

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

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 had made improper contacts with energy industry lobbyists when developing government policy. (Full story)

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

"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. "It certainly raises questions about the appearance of impropriety."

Bookbinder said his group is exploring its legal options.

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.

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 alone would not 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.

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 being 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, or because of potential financial conflicts.

Cheney is not personally liable, and would not face any financial damages if he loses the case.

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


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