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Scalia won't recuse himself from Cheney case

From Bill Mears
CNN Washington Bureau

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Supreme Court
Dick Cheney
Antonin Scalia
Justice and Rights

WASHINGTON (CNN) -- U.S. Supreme Court Justice Antonin Scalia refused Thursday to recuse himself from an upcoming case involving Vice President Dick Cheney, with whom he recently hunted and dined.

"I do not believe my impartiality can reasonably be questioned," Scalia said in a 21-page memorandum, rejecting suggestions of an appearance of a conflict of interest.

"If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined," he wrote.

Cheney's office had no immediate response.

In the detailed memo, Scalia cited legal precedent and offered personal observations about the controversy.

He dismissed a call from the environmental group Sierra Club that he recuse himself because a January hunting trip he and Cheney took together gave the "appearance of impropriety."

That trip came three weeks after the high court agreed to hear a case over whether the White House had to turn over documents relating to the energy task force Cheney headed in 2001.

Under judicial rules, Supreme Court justices, unlike other judges, have the power to decide whether to remove themselves from cases. The justices have wide discretion since their decisions cannot be appealed.

Sen. Patrick Leahy of Vermont was one of two Democratic lawmakers to call on Scalia to recuse himself. The other was Sen. Joe Lieberman of Connecticut.

"Instead of strengthening public confidence in our court system, Justice Scalia's decision risks undermining it," Leahy said in a statement.

"Such near-sightedness on a matter so basic to public trust in the independent judiciary is as puzzling to the American people as it is harmful to the court. For other courts, the reason to recuse under such circumstances would be self-evident."

Federal laws dictate judges or justices should remove themselves from cases if questions arise about their fairness or impartiality.

Scalia concluded friendship alone did not meet that standard. "My recusal is required if ... my impartiality might reasonably be questioned," he said.

"Why would that result follow from my being in a sizable group of persons, in a hunting camp with the vice president, where I never hunted with him in the same blind or had other opportunity for private conversation?"

Scalia said that he did not remember being alone with Cheney and that they never discussed the case.

"The only possibility [for recusal] is that it would suggest I am a friend of his. But while friendship is a ground for recusal of a Justice, where the personal fortune or the personal freedom is at issue, it has traditionally not been a ground for recusal where official action is at issue, no matter how important the official action was."

Scalia and Cheney also had a private dinner with Defense Secretary Donald Rumsfeld on Maryland's Eastern Shore in November, when the Supreme Court was considering Cheney's appeal.

Scalia said he was worried a recusal in this case would lead to calls by journalists and others "to suggest improprieties and demand recusals, for other inappropriate (and increasingly silly) reasons."

start quoteIf it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined.end quote
-- Supreme Court Justice Antonin Scalia

The justice also suggested he was being held to a legal double standard. Scalia noted an attorney for the Sierra Club had invited him to speak at Stanford Law School, where the lawyer teaches, two days before the environmental group filed a brief in the case.

"I saw nothing amiss in that friendly letter and invitation," Scalia wrote. "I surely would have thought otherwise if I had applied the standards urged in the present motion."

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

Cheney's task force met throughout in 2001 and developed a report recommending opening up more federal land to oil, natural gas and coal development.

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.

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

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

Arguments in the case will be heard next month, with a ruling expected by late June.

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


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