- The Washington Times - Monday, March 1, 2004

The Supreme Court yesterday said Justice Antonin Scalia would decide on his own whether to withdraw from a case involving Vice President Dick Cheney.

The Sierra Club and Judicial Watch are trying to force Mr. Cheney to release the records of the national energy-policy group, and requested that Justice Scalia recuse himself from the case because he went on a hunting trip with Mr. Cheney one month after the court agreed to hear the case.

“In accordance with its historic practice, the court refers the motion to recuse in this case to Justice Scalia,” the justices said in an order yesterday.

Justice Scalia has indicated several times he will stay in the case, saying the trip was a “typical Washington social contact.”

The motion for recusal was filed by the attorney for the Sierra Club, Public Citizen’s Alan Morrison, who used a Scalia opinion to argue that the justice withdraw.

Citing Justice Scalia’s own words in 1994’s Liteky v. United States, Mr. Morrison told the high court that “what matters is not the reality of bias or prejudice, but its appearance” when deciding on a judge’s withdrawal. “Quite simply and quite universally, recusal was required whenever ‘impartiality might reasonably be questioned.’”

The motion said the facts satisfy the requirement of federal law, “which mandates recusal merely when a justice’s impartiality ‘might reasonably be questioned.’”

The Supreme Court is expected to hear the Cheney case in April.

The vice president is asking the Supreme Court to help him keep secret the details of closed-door White House strategy meetings by the National Energy Policy Development Group.

The Sierra Club and Judicial Watch, a public-interest group, say Mr. Cheney allowed energy lobbyists and big-name campaign contributors to participate in the work of the group and insist that the records be made public.

President Bush established the policy group as one of the first acts of his administration. Mr. Bush’s executive order said the group was to be chaired by the vice president and made up of a number of Cabinet secretaries and other public officials.

Mr. Cheney’s policy group issued a public report in May 2001, and the report eventually evolved into the administration’s proposed energy bill. The report also contained a list of participants in the policy group meetings. In accordance with Mr. Bush’s instructions, the listed participants were all members of the federal government.

The General Accounting Office, the investigative arm of Congress, tried to make the records of the policy group public, but dropped the attempt when its argument failed in U.S. District Court.

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