Over the weekend, the LA Times discovered that Dick Cheney left his undisclosed location just long enough to join Supreme Court Justice Antonin Scalia for a hunting trip at a private camp in Louisiana. The outing was just three weeks before Scalia and the rest of the high court will hear Cheney’s appeal of lawsuits challenging the secrecy of his office’s energy task force.
You don’t have to be a conspiracy theorist to think the worst here.
Scalia, predictably, rejected concerns. “I do not think my impartiality could reasonably be questioned,” he said.
Impartiality? A Supreme Court justice and self-identified “friend” of a litigant goes on a trip with that litigant three weeks before hearing his case? This smells really bad.
“A judge may have a friendship with a lawyer, and that’s fine. But if the lawyer has a case before the judge, they don’t socialize until it’s over. That shows a proper respect for maintaining the public’s confidence in the integrity of the process,” said Stephen Gillers, an NYU law professor who specializes in legal ethics. “I think Justice Scalia should have been cognizant of that and avoided contact with the vice president until this was over. And this is not like a dinner with 25 or 30 people. This is a hunting trip where you are together for a few days.”
The only thing I’d add to Gillers’ analysis is that Cheney isn’t a lawyer in this case, he’s the defendant. That makes it much worse.
And if you’re a conservative willing to give Scalia and Cheney the benefit of the doubt, consider a hypothetical: Let’s say six years ago, then-Vice President Al Gore was the subject of a lawsuit about to be heard by the Supreme Court. Three weeks before the arguments are heard, Gore went on a trip Stephen Breyer. Any guesses on how many cries of outrage we’d hear?
If Scalia wants to maintain a longtime friendship with Cheney, that’s up to them. But to maintain what’s left of judicial impartiality with this Court, Scalia should recuse himself from his friend’s case.