Cool name, isn't it?
January 22, 2004 Contact: Leslie Phillips
(202) 224-2627
LAWMAKERS QUERY HIGH COURT ON ETHICS OF SCALIA VACATION WITH CHENEY
What are the Supreme Court's Rules on Recusal?
WASHINGTON - Judiciary Committee Ranking Member Patrick Leahy, D-Vt.,
and Governmental Affairs Committee Ranking Member Joe Lieberman,
D-Conn., Thursday asked Supreme Court Chief Justice William Rehnquist
about issues arising from a hunting trip Justice Antonin Scalia took
with Vice President Dick Cheney shortly after the high court agreed to
hear a case in which Cheney is the principal party.
In a letter dated January 22, 2004, the two ranking committee members
inquired about Supreme Court "canons, procedures and rules" on whether
justices should recuse themselves from cases in which âtheir
impartiality might reasonably be questioned.
When a sitting judge, poised to hear a case involving a particular
litigant, goes on vacation with that litigant, reasonable people will
question whether that judge can be a fair and impartial adjudicator of
that man's case or his opponent's claims, the Senators wrote.
According to news reports, Scalia joined Cheney on a hunting trip for
several days earlier this month just three weeks after the Supreme Court
agreed to grant a petition of certiorari in a case involving the secrecy
of the Vice President's energy task force and the formulation of
Administration energy policy.
Attached is a copy of the letter:
January 22, 2004
The Honorable William H. Rehnquist
Chief Justice
Supreme Court of the United States
Washington, D.C. 20543
Dear Chief Justice Rehnquist:
It is with regret that we write to inquire about published reports that
Justice Antonin Scalia recently spent extended time with Vice President
Richard Cheney on an out-of-town trip. Coming just three weeks after the
Supreme Court voted to grant a petition for certiorari in a case in
which the Vice President is a principal party, this trip raises
questions. When a sitting judge, poised to hear a case involving a
particular litigant, goes on a vacation with that litigant, reasonable
people will question whether that judge can be a fair and impartial
adjudicator of that man's case or his opponent's claims.
The integrity of our courts and the confidence of the American people
depend on judges acting without fear or favor, and section 455(a) of
title 28 of the United States Code, which applies to justices as well as
other federal judges, requires judges to disqualify themselves if their
impartiality might reasonably be questioned. The standard set in this
statute is not a subjective one and it does not require proof of actual
bias. It is intended to protect the American people from both actual
bias and the appearance of bias, both of which work to erode public
confidence in the fairness of our federal court system.
In this particular case, Vice President Cheney is a named party and a
material witness to the events at issue in the lawsuit the Supreme Court
has agreed to hear. The type of socializing reported recently between
this judicial officer and this litigant is not akin to an open meeting
between the local bench and bar or ceremonial public contact in the
exercise of official duties. Instead, it appears to have involved
contact over several days and nights. Moreover, the report mentions the
use of private jets and facilities provided by an energy industry
insider, which may raise additional ethical questions and concerns about
the case and the acceptance of such gifts or benefits of such value,
under the Ethics in Government Act, Pub. L. No. 95-521 as amended, the
Ethics Reform Act of 1989, and ethical canons governing judicial
conduct.
While judges should not be isolated from the society in which they live,
they must take special care that their extra-judicial activities do not
create a conflict with their judicial duties, give rise to an appearance
of impropriety, or create a reason for questioning their impartiality.
As you know, the ethical rules apply to both the public and private
conduct of a judge. While such rules might be considered burdensome to a
private citizen they exist to protect the public and to preserve the
integrity and independence of the courts.
The Honorable William H. Rehnquist
January 22, 2004
Page 2
Setting aside any evidence of actual bias, the ethical rules recognize
that the perpetuation of an appearance of partiality is a threat to
public confidence in our federal courts.
Accordingly, we inquire what canons, procedures and rules are in place
for Supreme Court justices to determine whether they must or should
recuse themselves under 28 U.S.C. 455(a) or any other relevant ethical
rule or interpretation. We would also like to know what mechanisms exist
for obtaining advisory opinions before activities are undertaken and
whether any such mechanism was utilized by Justice Scalia before his
recent trip with Vice President Cheney. Further, we inquire whether
mechanisms exist for the Supreme Court to disqualify a Justice from
participating in a matter or for review of a Justiceâ?Ts unilateral
decision to decline to recuse himself. Additionally, we would like to
know whether the Supreme Court has given any guidance to its Members
about the propriety of, and any conditions for, accepting access to
private jets for travel to extra-judicial activities.
You have often observed that the integrity and independence of our
federal courts is one of the crown jewels of the American legal system.
We agree. We thank you for your prompt attention to this important
matter.
Sincerely,
PATRICK LEAHY
Ranking Member
Committee on the Judiciary
JOSEPH I. LIEBERMAN
Ranking Member
Committee on Governmental Affairs
--
Deanna Schneider
UWEX-Cooperative Extension
Interactive Media Developer
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