In Re Cheney

In re Cheney (2004) “The Scalia Recusal Memo”

The litigation is a matter of administrative law. Brought by the Sierra Club it took issue with secret meetings held by an Energy Task Force convened by Vice President Richard Cheney. Justice Scalia was asked to recuse himself from the case because of his socializing with the Vice President. In the following memorandum Scalia denies the motion for his recusal. There is, of course, no review to a higher tribunal other than the court of public opinion.

Justice Antonin Scalia

I have a motion to recuse in these cases consolidated below. The motion is filed on behalf of respondent Sierra Club….

For five years or so, I have been going to Louisiana during the Court’s long December-January recess, to the duck-hunting camp of a friend I met through two hunting companions from Baton Rouge….

Our friend and host, Wallace Carline, has never, as far as I know, had business before this Court. He is not, as some reports have described him, an “energy industry executive” in the sense that summons up boardrooms of ExxonMobil or Con Edison….

During my December 2002 visit, I learned that Mr. Carline was an admirer of Vice President Cheney, Knowing that the Vice President, with whom I am well acquainted (from our years serving together in the Ford administration), is an enthusiastic duck-hunter, I asked whether Mr. Carline would like to invite him to our next year’s hunt. The answer was yes; I conveyed the invitation (with my own warm recommendation) in the spring of 2003 and received an acceptance….

The Vice President said that if he did go, I would be welcome to fly down to Louisiana with him.

We departed from Andrews Air Force Base at about 10 a.m. on Monday, January 5, flying in a Gulfstream jet owned by the Government. We landed in Patterson, Louisiana, and went by car to a dock where Mr. Carline met us, to take us on the 20 minute boat trip to his hunting camp….

It was not an intimate setting. The group hunted that afternoon and Tuesday and Wednesday mornings; it fished (in two boats) Tuesday afternoon. All meals were in common. Sleeping was in rooms of two or three, except for the Vice President, who had his own quarters. Hunting was in two- or three-man blinds. As it turned out, I never hunted in the same blind with the Vice President. Nor was I alone with him in any time during the trip, except, perhaps, for instances so brief and unintentional that I would not recall them – walking to or from a boat, perhaps, or going to or from dinner. Of course we said not a work about the present case.

Let me respond, at the outset, to the Sierra Club’s suggestion that I should “resolve any doubts in favor of recusal.” That might be sound advice if I were sitting on a Court of Appeals…. There, my place would be taken by another judge, and the case would proceed normally. On the Supreme Court, however, the consequence is different: The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case.

Moreover, granting the motion is (insofar as the outcome of the particular case is concerned) effectively the same as casting a vote against the petitioner. The petitioner needs five votes to overturn the judgment below, and it makes no difference whether the needed fifth vote is missing because it has been cast for the other side, or because it has not been cast at all.

Even so, recusal is the course I must take…if, by reason of the actions described above, my “impartiality might reasonably be questioned.” 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? The only possibility 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 of the friend is at issue, it has traditionally not been a ground for recusal where official action is at issue….

A rule that required Members of this Court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling. Many Justices have reached this Court precisely because they were friends of the incumbent President or other senior officials – and from the earliest days down to modern times Justices have had close personal relationships with the President and other officers of the Executive.

The recusal motion, however, asserts the following: “Critical to the issue of Justice Scalia’s recusal is understanding that this is not a run-of-the-mill legal dispute about an administrative decision…Because his own conduct is central to this case, the Vice President’s ‘reputation and his integrity are on the line.’” I think not.

I am asked to determine what powers the District Court possessed under FACA, and whether the Court of Appeals should have asserted mandamus or appellate jurisdiction over the District Court. Nothing this Court says on those subjects will have any bearing upon the reputation and integrity of Richard Cheney…. FACA assertedly requires disclosure if there were private members of the task force, no matter who they were – “energy industry executives” or Ralph Nader…[T]here is nothing illegal or immoral about making “energy industry executives” members of a task force on energy; some people probably think it would be a good idea….

To be sure, there could be political consequences from disclosure of the fact (if it be so) that the Vice President favored business interests, and especially a sector of business with which he was formerly connected. But political consequences are not my concern, and the possibility of them does not convert an official suit into a private one…. It seems to me quite wrong (and quite impossible) to make recusal depend upon what degree of political damage a particular case can be expected to inflict….

If I could have done so in good conscience, I would have been pleased to demonstrate my integrity, and immediately silence the criticism, by getting off the case. Since I believe there is no basis for recusal, I cannot. The motion is

Denied