Ducking the Case

"The duck hunting was lousy.”

According to U.S. Supreme Court Justice Antonin Scalia, he and his hunting partner, Vice President Dick Cheney, didn’t hit too many targets on their recent trip to Louisiana. While Justice Scalia reported that he “did come back with a few ducks, which tasted swell,” the trip has left a foul taste in the mouths of many who appear before the nation’s highest court.

No one has questioned the pair on the ethical treatment of animals, but the some have taken shots at Scalia on the ethical treatment of litigants. Only three weeks before he accepted Cheney’s hunting invitation, Scalia’s court accepted Cheney’s request to review a case involving the Vice President’s controversial closed-door sessions with such billionaire energy executives as former Enron Chairman Kenneth Lay.

After his energy task force recommended that Cheney devote more federal land to oil drilling and the production of other sources of energy, environmental groups sued Cheney for allegedly improper contacts in forming the president’s energy policy. When a federal judge ordered him to disclose the details of these meetings, Cheney refused. His lawyers are now challenging this ruling before Scalia and his eight colleagues.

Just as Cheney has denied any improper contact with members of his task force, Scalia is denying any improper contact with Cheney. Reacting to calls for Scalia’s recusal from the case, the justice scoffed at claims that his friendship with Cheney may impair his objectivity: “I do not think my impartiality could reasonably be questioned.”

Under federal law, a justice must “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Due to the need “to promote public confidence in the integrity of the judicial process,” Justice Scalia’s colleagues have previously ruled that “what matters is not the reality of bias or prejudice, but its appearance.” 486 U.S. 847; 510 U.S. 540. Because judges are often courted by those seeking to gain judicial favor, canons of judicial ethics prohibit judges from accepting “anything of value from anyone seeking official action from or doing business with the court or other entity served by the judge.” Canon 5C(4).

Though denying any appearance of impropriety, Scalia was concerned enough about appearances to write a letter to the editor of The Los Angeles Times. According to Scalia, “Social contacts with high-level executive officials (including cabinet officers) have never been thought improper for judges who may have before them cases in which those people are involved in their official capacity, as opposed to their personal capacity.”

This fine legal distinction may appeal to those with the sophistication of a Supreme Court justice, but does little to promote public confidence in the integrity of our judicial system. As he sits in judgment of a friend accused of improper contacts with the oil industry, Justice Scalia must confront similar accusations. This esteemed jurist may wish to reconsider his position after reflecting on a “lousy” hunting trip funded by Wallace Carline, owner of one of the largest oil-drilling companies in America and a prime beneficiary of the recommendations of Cheney’s task force.

Justice Scalia may deny any appearance of impropriety, but if it looks like a duck, and quacks like a duck, he might just want to duck.