Cheney Hunting Trip With Scalia Raises Impartiality Questions

Los Angeles Times

Another juicy Scalia recusal issue. Since I opine on recusal issues from time to time (it was the topic of my senior thesis, which you can read a rough version of here), why stop now?

The article mentions that the "code of conduct for federal judges sets guidelines for members of the judiciary, but it does not set clear-cut rules." That's partially true, but judicial "code of conduct" is distinct from 28 USC 455, subsection (b) of which sets down some pretty clear rules.

Unfortunately, Scalia doesn't fit into any of these, so were left with section (a), which states that "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Interestingly, Justice Scalia himself wrote the majority opinion in the last case examining subsection (a): Liteky v United States, 510 US 540 (1994). (Yes, note the Maroonbooking, how exotic). He strengthened the rule that impartiality under section 455 generally must come from an extrajudicial source, not from, say, prior judicial experiences with a party.

However, an unwritten rule also dominates this area: it doesn't really matter that your "impartiality might reasonably be questioned," if it's questioned because of personal wisdom gained from past experiences. For example, in Laird v Tatum, 409 US 824 (1972), Justice Rehnquist's potential bias came from work experience in the Nixon administration. Since we want judges with experience in the issues they adjudicate (or so the argument goes), the section 455 standard is often sidestepped if the Justice's situation is similar to Rehnquist's in Laird, where he worked on military issues in the Nixon administration closely related to the case before him. As Rehnquist put it, if section 455 demanded recusal from those with personal experience in certain areas, the perfect judge would be a "tabula rasa": unbiased, unopinionated, uncontroversial, and uninspiring. You know, like the opposing party's "perfect" judicial nominee.

With that caveat, however, the subjective "impartiality might reasonably be questioned" standard is in play, and the Scalia/Cheney situation is a good candidate for its application. Scalia's potential bias comes from his personal and on-going friendship with Cheney. It reminds me a bit of the Burger - Nixon relationship, only less egregious (Scalia presumably isn't advising Cheney on policy matters). Many scholars argue that these friendships are traditionally ok so long as they are put on hiatus while a court proceeding is pending. I disagree - the nature of their relationship hasn't changed just because one is now a party to a pending case and they won't see each other for a few months. After all, the bias at issue isn't that Cheney will talk to Scalia about the case (that's a cut and dry recusal situation), but that Scalia's bonds with Cheney will subconsciously influence him. That's why the standard is so subjective, and takes the view of a third person examining the situation. If this outsider might "reasonably question" the Justice's impartiality, it's time to pack your bags. I think we have a chorus of people viewing this situation with reasonable skepticism (as opposed to partisan motives), so the answer is obvious to me. Justice Scalia, time to exit stage left. Or right, if you prefer.