March 20, 2004

His Boy Cheney

by PG

Commenting on Nick's post regarding Scalia's recusal refusal, Brian says,

I think Scalia's incredulity is focused at the Sierra Club's relative lack of legal citation to case law in fleshing out the range of the statute. Rather, as he points out, the main thrust seems to revolve around newspaper articles.

I'm not saying the statute has some mystical extra-textual meaning, however, it's fair to say that the ethical governance of the judiciary is more complex and intricate than what the average Joe's opinion is on Scalia's impartiality. In other words, there's a context to the statute that most laymen don't consider -- a context that is provided by legal precedent. It looks like the Sierra Club, realizing it didn't have legal precedent on its side, tried to dump the interpretation of the statute into the court of public opinion.
Yes, the Sierra Club was citing more to popular opinion than to case law (though as Lithwick notes, "A bit unfair, perhaps, to blame the Sierra Club for the dearth of Supreme Court case law in an area that has been reserved for secret, individual Supreme Court decision"). But isn't that part of what "reasonable" means even in a legal context? The "reasonable man" is really just what the average sane person is like, not the person well-versed in legal precedents and the ways of Washington.

As for whether Justice Antonin Scalia can decide the case impartially, the best point he made was that he also is friends with a lawyer for the Sierra Club. If his friendships with people in high places are problematic, then that one ought to be as well.

Except -- that lawyer's reputation isn't really on the line. The point at which I disagree with Scalia is that I do think Vice President Richard Cheney's rep is on the line to a much greater extent, and thus this is less of a bloodless X v. Y case than Scalia would like to think.

The best example of X v. Y would be if Scalia were friends with Ashcroft, and the ACLU tried to challenge Scalia's sitting on the latest round of U.S. Attorney General Upholding Congressional Legislation v. ACLU. Of course, the ACLU wouldn't bother with that challenge, because they know Ashcroft's job requires him to defend the law, just as Janet Reno's did. The Attorney General, whether Republican or Democrat, continues to do that work even if he or she privately thinks the law is wrong.

That's not the Cheney scenario, however. This is the "Cheney Energy Task Force," not a committee that a vice president traditionally oversees as part of his job as vice president. There was no "Gore Energy Task Force."

On page six of the memo, Justice Scalia implies that the lawsuit would continue even with a different person in the vice president's office, just as the ACLU lawsuit continues with Ashcroft replacing Reno. I find that an implausible suggestion. Does anyone really believe that if Bush leaves office, his Democratic replacement's VP will maintain the secrecy of the task force's records? Without the maintenance of secrecy, the lawsuit disappears.

Moreover, a substantial part of the concern about the place of energy industry executives on the task force is due to Cheney's history as one such executive, having been the CEO of Halliburton. Unlike theoretical Republican replacements in the Bush VP slot such as Colin Powell, Cheney is already distrusted by some environmentalists because of his own private-sector resume, without even counting his actions in public service. A possible implication of his having relied on energy exectives in determining national policy is that he has let his pre-existing bias toward that industry outweigh other considerations.

In the end, however, I go back to agreeing with Scalia that when truly uncertain, a SCOTUS justice should prefer staying on the Court, to ensure that there is no 4-4 decision. I suppose he could have invited Ginsburg on the duck hunt to avoid that possibility, thus making a split decision 4-3, but this trip sounded like one for the boys -- Scalia took his son and son-in-law, without their wives.

March 20, 2004 10:30 PM | TrackBack

That it took Scalia 51 pages to argue against the "appearance of impropriety" and then on top of that to misstate the standard from "might" to "would" seals the argument in my mind.

If he doesn't recuse himself, he is doing the Court, the country and the cause of equal justice before the law a disservice.

There may not in fact be any impropriety, if Scalia's protestations of innocence are to be believed, but there certainly might appear to be some impropriety to reasonable persons.

Scalia should err, if at all, on the side of disspelling any hint of impropriety and recuse himself from the case.

Posted by: adaplant at March 21, 2004 02:26 AM

Maybe it’s just semantics, but perhaps the emphasis is on what it means for a judge to be impartial rather than whether or not one reasonably thinks he is impartial. That is, what level of extra-judicial involvement improperly taints a judge’s interest? Consider it a conflated trial where the judge acts as legal interpreter, fact-finder, and self-advocate.

In interpreting the law to be applied, we focus on the impartiality aspect. I agree that Cheney’s reputation is on the line, but is it on the line in a personal or professional capacity. By the latter I mean is this case really about a personal damning of Dick Cheney or of the policies of the Bush administration? I’m not sure I buy into the distinction between Cheney’s committee, although unique, and the actions by an Attorney General. Both are part of an Executive Branch whose policies were implicitly (if not explicitly) voted in by the people [pause for 2000 election jokes]. Surely not all of the actions of an Attorney General, given such things as prosecutorial discretion, can be viewed as apolitical. So, if this really is a matter of the environmentalists versus the Bush administration, I don’t think Scalia misses the mark.

While it’s true, as the omnipresent Dahlia Lithwick notes, that there may be a – get ready for the alliteration – paucity of precedent involving recusals, one has to look at the situations of non-recusal, too. Silence in the face of a possible taint on impartiality certainly has some precedential value. The examples Scalia provides of Justices White and Jackson are highly relevant to the case at hand. Both had close relationships with the Presidents who appointed them and both were reviewing cases involving matters of policy important to those same Presidents. Jackson practically worshipped FDR and was an ardent supporter and friend of his since his days as governor of New York including stints as Solicitor General and Attorney General.

Given those above situations as the legal interpretation of what is acceptable within the bounds of impartiality called for in the statute, the question of fact would be: Were Scalia’s actions reasonable or unreasonable in light of past practice? Clearly, at least to me, they seem quite reasonable. While the average reasonable person might disagree, what would he or she say about Justices Jackson and White? Thus, I think Justice Scalia is right to chide the wisdom of allowing media pundits to influence decisions of recusal. If the internet, CNN, and Dahlia Lithwick existed in the days of the latter-day New Deal Court, they would have had to dig up some of the Four Horsemen to hear any cases due to the number of disqualifications.

On the other hand, backtracking to the possibility that Dick Cheney reputation is personally at stake, it couldn’t be viewed as purely a review on Bush administration policy. That’s a harder question. Another hard question is which one is more serious: partiality due to personal affinity or partiality due to bias and involvement in an administration’s policies? Unfortunately, I’ve babbled on enough – I will now do something productive like play Grand Theft Auto.

Posted by: Brian at March 21, 2004 02:48 AM

Brian, the question is really simple: might scalia's impartiality reasonably be questioned? It is not, as you have phrased it, "Were Scalia’s actions reasonable or unreasonable in light of past practice?" The fact that you have moved reasonableness from the questioning of impartiality and into the actions of the justice follows the same rhetorical move Scalia pursues in his memo. Do you suggest that whether a question about Scalia's impartiality is reasonable depends on the relationship between Jackson and FDR? I think not. Whether it appears that Scalia's impartiality might reasonably be questioned should, for a good textualist like Scalia, require an analysis of what judgment a reasonable person might have passed given the circumstances. Scalia gave us his honest opinion why he isn't biased, and why he doesn't think the facts support bias, and I agree with you, Brian, that there are some good reasons to side with Scalia and approve his refusal. But those reasons are NOT statutory unless Scalia really contends that the broad and widespread (even if not majority) questions raised about his impartiality are all, each one of them, unreasonable. Reasonable does not mean "tending to stress judicial resources" or "inconvenient to the judicial system" or "sound only insofar as the judgment comports with a history of fraternization that itself may have been improper."

If we think Scalia made the right statutory reading, you and I right now need to say the PG's concerns about Cheney's reputation, and the commonly voiced disagreement with Scalia's odd distinction between personal and professional capacity, are all, each and every one of them, without any reasonable sense. That's a high standard, and it should be that way. Check out some of the decisions under 28 usc 455, and you'll find an overwhelming preference for erring on the side of recusal and protecting the integrity of the judicial system.

Posted by: Nick Morgan at March 21, 2004 03:21 AM


But almost all of those cases are lower court cases. Scalia distinguishes these from Supreme Court practice quite well, and why the Court would normally invoke a higher standard. If Scalia has one very strong point, it's "why him, why now?"

Simply put, the NYT doesn't like Scalia. Check out Maureen Dowd's vitriolic screed in today's paper, devoid of rhyme or reason. Many other newspapers disagree with him much of the time, in a way that they don't with, say, Justice Ginsburg. Nonetheless, the Sierra Club is asking him to step aside on the basis of facts that are often wrong--and may I say submitting op-ed pieces with factual inaccuracies in support of a brief doesn't sound real smart, particularly if you're trying to invoke a 'reasonableness' standard?

The thing is, we wouldn't be having this debate about, say, Ginsburg and NOW. The 'impartiality' of other Justices is rarely questioned, particularly the darlings of the NYT and the Washington Post. Scalia's right not to recuse himself because if this is how we interpret the standard, we're going to have many fewer five-man decisions. (And incidentally, let's consider how this might play to certain defendants. Leave aside the President, who is the obvious defendant who would often play to an empty court. Two of the current justices, Scalia and Ginsburg, have appeared onstage in an opera held at the Kennedy Center. If either the opera company or the Center came up as a defendant, surely we're looking at a seven man court, possibly fewer?)

What those who dislike Scalia really ought to ask is, "If Scalia steps aside, do they really want to face the consequences?" The 'reasonableness' standard admits enough room for manuever here, because as Scalia points out the Reasonable Man is assumed to be apprised of the actual facts. But if the Club got its way on this, do you really, really think that right-wing opponents will not play this game? In which case, every large case will gain a new phase: attempts to gain recusals by parsing justice's date books against the parties in the case.

Further, if there's any unpersuasive statement above, it's PG's: "Does anyone really believe that if Bush leaves office, his Democratic replacement's VP will maintain the secrecy of the task force's records? Without the maintenance of secrecy, the lawsuit disappears." But imagine that Cheney becomes ill in the next two months, and Bush replaces him with Rice. Does PG seriously suspect that Rice would hand over such notes? The fact that a different administration would decide not to invoke a privilege because it's politically advantageous for them not to do so doesn't eliminate Scalia's argument, which is a pure matter of law: if Cheney stepped down, the suit would suddenly be v. Rice.

Finally, on a slightly lighter note, the idea that Cheney's credibility with environmentalists is on the line here is a bit difficult to believe. Before Cheney could have any such thing at risk, there would have had to have been a moment when environmentalists granted him some credibility in the first place. ;)

Posted by: Anthony Rickey at March 21, 2004 12:20 PM

Tony, you didn't get to the thrust of my argument until your last two paras. Ginsburg wouldn't step aside in a NOW case any more than the justices who were Eagle Scouts stepped aside for Dale. The crux of the argument is whether this case strikes at Cheney personally. Would Rice maintain the secrecy? Probably, but in the interests of Cheney. For a member of the Bush Administration to fail to hold the line for Cheney would be a huge breach of loyalty, and we've all heard about Bush's personal loyalty fetish.

If this were solely about the office of the VP, as the ACLU case is about the office of the Attorney General, the next person in the office regardless of party would keep the case going. But that's not the totality of this case; it's about Cheney himself as a creature of the energy industry.

I did say that I agreed with Scalia to lean toward his not recusing and thus ensuring there would be no 4-4 decision. But I disagree with him on the issue of this case's being just about The Vice President, and not about Richard Cheney, former Halliburton CEO and close friend of the energy industry.

Posted by: PG at March 21, 2004 03:54 PM


[I didn't get to the thrust of your argument until the last two paragraphs because it was mostly a reply to Nick's comments. Hence, 'Nick' at the top. :)]

In which case, neither Rice nor Cheney are withholding facts in the interest of Cheney, but in the interest of Bush, no?

And it's absolutely incorrect to say that if it were solely about the office of the VP, then the next person in office regardless of the party would keep the case going. It would depend very much upon what the interests of the party in power was at that point, and whether the short-term merits of handing them over (considerable, in this case, for a party fresh-from-opposition) outweighed the likelihood that they'd need to invoke similar privilege.

A Democratic administration wouldn't hand over the documents because they felt that Cheney's legal points were good or bad, but because it would embarass their opponents. That doesn't bear on whether the case is one of personal or official capacity. It just means that Democrats are as likely to want to attack Republican's professional capacities as their personal ones, and vice-versa.

Posted by: Anthony Rickey at March 21, 2004 05:32 PM

Nick says:

"Whether it appears that Scalia's impartiality might reasonably be questioned should, for a good textualist like Scalia, require an analysis of what judgment a reasonable person might have passed given the circumstances."

Putting aside the awkwardness of my law/fact analogy, I think the circumstances include how recusal was handled on the Supreme Court level in the past, thus the instances involving White and Jackson do have relevance.


"Reasonable does not mean "tending to stress judicial resources" or "inconvenient to the judicial system" or "sound only insofar as the judgment comports with a history of fraternization that itself may have been improper."

I would say here it does mean those things to the extent necessary to consider the circumstances. Statutes are given meaning by the case law that interpret them. Now, I understand that the Jackson issue wasn't a case per se, but it does act as such given the nature of recusal (i.e., that there are only two outcomes: yes and no).

However, all of that said, I do agree that the case does involve the personal reputation of Cheney as well as the reputation of the Bush administration. As such, the circumstances are not informed or ammeliorated by the White and Jackson "precedent."

I also agree that although Scalia probably gets the outcome right, he also goes about it in his traditional "take no prisoners" fashion. That's just Scalia being Scalia... probably even overly Scalian due to the somewhat harsh nature of the Sierra Club's motion.

Just another two cents on the side issue about individual judicial philosophy. I don't think it's disengenuous for a textualist to sometimes deviate from textualism. Just as I don't think it's disengenuous for a non-textualist to rely on the text. Is it a little unseemly? Yes. However, unless an individual judge is turning the law on it's head to reach a certain desired result (which can be said for jurists on both sides of the political spectrum), I don't have too much of a problem.

Posted by: Brian at March 21, 2004 05:54 PM

If any of the leftist justices had met with Sierra Club leaders to have a seance in the middle of the woods, the media/academia wouldn't bat an eye. This is clearly biased scrutiny.

Posted by: Billy Bob at March 21, 2004 09:17 PM

Billy Bob,

As a matter of fact, one of the lawyers for the Sierra Club is also a friend of Scalia's. You've clearly missed the point of the entire post. If this case were solely about Cheney in his professional capacity -- say, about whether the president of the Senate can have disruptive individuals removed from the Senate -- then no one would be fussing about the duckhunt at all.

The problem arises insofar as this case affects Cheney's personal reputation. Some people, like Scalia and Tony, think that there is no personal element at all. Some people, like myself, think there is a personal element but not enough of one to justify leaving the Court open to a 4-4 decision. Some people, like adaplant, think there is sufficient personal element to require recusal.

These are all differences in perception, and while I of course think my perception is the correct one, I do not think that a different perception is automatic proof of political bias. The sooner Certain People stop yelling "media bias!" every time one of their guys is challenged by the media, the more sensible discussion can become.

Posted by: PG at March 21, 2004 09:25 PM


I'm not sure cries of 'media bias' are unfair when most of the citations given in a brief are citations to the media. The fact is that the Sierra Club relied on a number of newspapers that are profoundly anti-Republican (the NYT and LATimes, for instance). These same papers, when faced with the fact that many of the sources they'd 'relied upon' (e.g. the Washington Post's point that no other paper had come out in favor of Scalia) got their facts wrong, certainly didn't point that fact out in an editorial over the last few days.

The Sierra Club relied not only on the 'media,' but a narrow range of media indeed--newspapers. If that's the case, 'media bias' is certainly an issue.

Posted by: A. Rickey at March 21, 2004 10:21 PM

Tony, I think you're changing the meaning of "media bias." It is commonly used to refer to perceived bias in in the media, not an organization's bias toward the media. I seriously doubt Billy Bob meant the Sierra Club's bias; he was referring to "the media/ academia"'s "clearly biased scrutiny."

And the point of the Sierra Club's citations was to show that many people thought that Scalia's impartiality was reasonably questionable. If they had not gotten the facts right until now, then Lithwick is correct in saying that Scalia's memo did a good service in removing the uncertainty and secrecy surrounding the issue. As for the bias toward a certain part of the media, TV news rarely has editorials the way newspapers do, and the internet still isn't considered respectable, so I don't know what else Sierra would cite.

Posted by: PG at March 22, 2004 10:50 AM

How is this personal to Cheney? The issue presented by the case is whether certain documents need to be handed over. The issue is a generic one and the question of law will be settled once the case is decided and has absolutely nothing to do with the parties. It is not a factual question, but a legal one, so why would the details be significant?

Posted by: David at March 22, 2004 05:54 PM

The parties in the case are relevant because handing the documents over essentially gives the Sierra Club et al. what they want: proof (assuming that the allegations are true) that energy executives played a significant role in writing the Administration's energy policy. In other words, it reinforces the theory that Cheney is a tool of the energy industry and likely to tailor public policy to industry interests, rather than to what is best for the country.

If this isn't a significant statement to have backed by documentation, for a politician, in an election year, I don't know what is.

Posted by: PG at April 27, 2004 02:08 PM
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