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Environmental group wants Scalia's recusal

From Bill Mears
CNN

Supreme Court Justice Antonin Scalia
Supreme Court Justice Antonin Scalia

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WASHINGTON (CNN) -- An environmental group suing Vice President Dick Cheney in U.S. Supreme Court case has asked Justice Antonin Scalia to recuse himself, citing reports that the two recently dined and hunted together.

The Sierra Club filed the request two months before oral arguments are scheduled on whether executive privilege applies in a case where the vice president wants to keep information from a task force confidential.

Scalia denies doing anything improper in socializing with Cheney. It is unclear whether Chief Justice William Rehnquist or the other justices have the power to force Scalia from the case.

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In their Monday filing, the Sierra Club's lawyers wrote, "Justice Scalia's impartiality has been reasonably called into question, and he must be recused."

Last month -- three weeks after the court agreed to hear the case -- Cheney invited Scalia, an old friend, to Louisiana to hunt on a private reserve.

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.

Chief Justice Rehnquist late last month dismissed congressional calls for Scalia to recuse himself. In a letter to Democratic Senators Patrick Leahy of Vermont and Joe Lieberman of Connecticut, as well as the other eight justices, Rehnquist labeled as "ill considered" any demands that Scalia pull out of the case.

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.

Scalia dismissed the ethical questions. In a letter to the Los Angeles Times, which reported details of the hunting trip first, 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."

Cheney's case

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 contends that he made improper contacts with energy industry lobbyists when developing government policy. Among the task force advisers was former Enron Chairman Kenneth Lay.

A lawsuit filed by the Sierra Club and Judicial Watch, a private watchdog group, seeks task force records to determine whether lobbyists for the energy industry privately helped craft the U.S. government's long-term energy policy.

The White House has argued that neither the courts nor Congress have any 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 2001, and developed a report recommending opening more federal land to oil, natural gas and coal development. The administration's energy bill remains stalled in Congress.

Federal laws dictate a judge or justice should remove himself or herself 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 by 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."

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

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


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