Saturday, March 27, 2004

A short time ago, Supreme Court Justice Antonin Scalia went duck hunting with Vice President Dick Cheney. Many editorial writers are now insisting Justice Scalia should recuse himself from a pending case in which two public interest groups are suing Mr. Cheney: They want him to turn over the records of the energy task force of which he is a member.

Does the law require Justice Scalia to recuse himself?

There is a statute on the subject, which lists various grounds for disqualification (e.g., the judge has a financial interest in the case, or the judge served as a lawyer in the case before he became judge). None of these provisions apply, so the argument is based on a catch-all: The judge shall disqualify himself in a case “in which the judge’s impartiality might reasonably be questioned.”

This vague language comes from the ABA Model Code of Judicial Conduct. It is a phrase most states have adopted. The ABA, by the way, issued an ethics opinion many years ago that advised, prophetically, that one must be concerned about imposing disqualification based on vague standards such as “appearances of impropriety,” for the judgment could easily be based on “an instinctive or even ad hominem basis.”

That may be happening here. There is a fair amount of case law interpreting the language Justice Scalia’s attackers hurl against him. And the precedent says Justice Scalia is right.

For example, in a case interpreting this exact same language, the Pennsylvania Supreme Court held the judge in a murder trial did not have to disqualify himself simply because he knew the victim and was a mourner at his funeral. The convicted murderer did not like that result.

In another case, the complaining witness in an attempted rape prosecution was a high school classmate and “a close personal friend” of the judge’s daughter, who attended the trial. The victim would also be maid of honor in the daughter’s forthcoming wedding. The Oklahoma court held the judge acted properly in refusing to recuse himself.

The Arkansas Supreme Court held that a lower court judge need not disqualify himself merely because he had asked one of the attorneys appearing before him to be a pallbearer at his father’s funeral. A federal court (following a long line of cases) held the judge need not recuse himself simply because his son was a lawyer in a party’s law firm, but was not personally acting as a lawyer in the proceeding.

Another federal court refused to disqualify a trial judge who attended an expense-paid environmental law seminar funded by an organization that received some funding from an oil company. Those facts did not furnish grounds to reasonably question the judge’s impartiality, even assuming the seminar presented an “unbalanced” view of environmental issues.

The main case that the movant relies on in seeking Justice Scalia’s disqualification involves a criminal prosecution brought by the Office of Independent Counsel during the Clinton years. The trial judge, before he was assigned to the trial, told reporters that if “anything came up regarding President Clinton, I would recuse,” because of his close friendship with Mrs. Clinton. The Court of Appeals agreed that “this case will, as a matter of law, involve matters related to the investigation of the President and Hillary Rodham Clinton.”

Yet, when the time came, the trial judge refused to recuse himself; instead he dismissed an indictment against the Arkansas governor and several others. Both the independent counsel and the Justice Department urged the Court of Appeals to reverse. It did so and reassigned the case to a different judge on remand. If Justice Scalia had said that he could not decide the case fairly because of his close friendship with the vice president, this precedent would be applicable.

There is a good reason courts, both state and federal, interpret the “appearance of impartiality” language objectively and narrowly. Judges do not divorce themselves from the world when they don their robes. They still are allowed to have friends, go on hunting trips and live a life.

Years ago, when I was clerking for a federal judge, he asked me, after the oral argument, what I thought of the two lawyers’ performances. Before I answered, he said: “Those are two of the finest lawyers you’ll ever meet. One was the best man at my wedding, and the other is one of my very best friends.” The judge did not think of disqualifying himself.

Nor did Chief Justice Harlan Fiske Stone disqualify himself from cases involving President Herbert Hoover, although he was a buddy and a member of Hoover’s informal “medicine ball” Cabinet. (They would throw medicine balls at each other before breakfast.)

Nor did Justice Robert Jackson, who was a personal friend of Franklin D. Roosevelt and took vacations with him. Nor did Justice William O. Douglas, who was a poker buddy of FDR. Nor did Chief Justice Frederick Vinson, who was a poker buddy of Harry Truman’s. Come to think of it, Justice Ruth Bader Ginsburg has given her name and presence to a lecture series cosponsored by the NOW (National Organization for Women) Legal Defense and Education Fund, an organization that often argues women’s rights issues before Justice Ginsburg. Should she disqualify herself from issues involving women’s rights?

I am a member of a legal ethics list server. One of the other members recently argued: “Censure by Congress, even articles of impeachment, should at least be considered” against Justice Scalia. One does not hear similar calls to impeach Justice Ginsburg because of her actions. Perhaps it’s just politics, and the political season is now 12 months long.

Ronald D. Rotunda, George Mason University Foundation Professor of Law, is a senior fellow with the Cato Institute.

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