Denver Bar Association
June 2004
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If It Walks Like a Duck . . .

by Craig Eley

. . . what matters is not the reality of bias or prejudice but its appearance. Quite simply and quite universally, recusal was required whenever "impartiality might reasonably be questioned."

–Antonin Scalia,

Liteky v. United States, 114 S.Ct. 1147 (1994)

About a year ago, I heard a very highly ranked member of the Colorado State Senate give a speech before a service club of which I am a member. It is safe to say that most of those present were in agreement with the general political philosophy of the speaker, so it could be termed a friendly crowd. After the formal presentation, the senator solicited questions from the audience. One of the members of the audience began his question by stating that by accepting free meals, drinks and gifts from lobbyists, legislators were tarnishing the image of the General Assembly. Why, then, did they persist in this practice?

The senator replied, somewhat indignantly, that if the questioner thought that his vote could be bought for the price of a meal, the state was in more trouble than he had thought. Then the senator moved on to take another question.

I perceived that to many in the audience, the senator’s answer was unsatisfactory. He had not been asked whether his vote could be purchased and, if so, at what price. He was basically asked whether he cared enough about the reputation of the Senate to forgo the daily freebies that come his way due to his position as a legislator. As I sat in the meeting, I found myself thinking critical thoughts of the senator until I realized that he had, in fact, answered the question.

I was reminded of this exchange during the recent controversy over Supreme Court Justice Antonin Scalia. After his court had agreed to hear a suit in which the Sierra Club and others were suing Vice-President Richard Cheney over discovery issues regarding the allegedly secret proceedings of his energy policy task force, Justice Scalia accepted a ride on the vice-president’s plane and, accompanied by a son, a son-in-law, and the vice-president himself, flew to Louisiana for a duck-hunting trip.

The attorneys for the vice-president reportedly believe that the suit against the vice-president is nothing more than a discovery "fishing expedition." The Sierra Club, apparently being discomfited by the effect that a duck-hunting trip might have on a fishing expedition, moved that Justice Scalia recuse himself from the case.

In his memorandum opinion of March 18, 2004, Justice Scalia explained, in denying the motion for recusal, that he spent very little time alone with Cheney during the hunting trip, and that they did not talk about the case at all. He pointed out that, in the past, a number of justices were known to be friends of presidents. Indeed, he noted that that’s how many of them obtained their appointments to the court.

In serving up examples from the past that went as far back as the Quincy Adams administration, Justice Scalia related that Justice Douglas played poker with President Franklin Roosevelt, and Chief Justice Vinson did the same with President Truman.

The state of Colorado gained some measure of notoriety in Justice Scalia’s defense of his hunting trip, because he mentioned in some detail a 1963 Colorado ski trip that Justice White took with the Kennedy clan. Apparently the president was not present, but his brother, the attorney general, and Secretary of Defense Robert McNamara were. Justice Scalia wrote that he saw nothing wrong with Justice White vacationing with and accepting rides from his friends, even though the attorney general was a named party in two cases that were pending before the court. He even directed a little of the well-known Scalia sarcasm toward a Colorado media outlet when he wrote: "The Denver Post, which has been critical of me, reported the White-Kennedy-McNamara skiing vacation with nothing but enthusiasm."

It is interesting to think of Justice Scalia digging through 40-year-old newspapers trying to get the goods on The Denver Post. I wonder if anyone realized it was him at the Denver Public Library, spinning the knobs on a microfilm reader, as those black-and-white images came streaking by on the backlit screen. Since he didn’t need to show a Denver library card (which I doubt he had) in order to look at microfilm, he probably came and went without being recognized by anyone.

Continuing with his defense, Justice Scalia pointed out that Cheney has nothing to personally win or lose in the litigation before the court, because he was being sued in his official capacity. Yet I wonder what would happen to a Colorado district court judge who, in the middle of handling a liability case brought against a defendant whose insurance would cover any possible judgment, got a free airplane ride from and took a vacation with that defendant. Despite the fact that the defendant would have nothing to personally lose in the litigation, I cannot imagine a Colorado judge ever doing that.

And it turns out that there ain’t no free ride, either, according to Justice Scalia. Although their seats on the government plane didn’t cost him or his relations anything, it also didn’t cost the government anything extra, either. This is because the Scalia party rode on a space available basis, and since the plane was taking the vice-president to the hunting trip anyway, no harm, no foul (and no mention in the opinion of whether the justice threw down a bag of government peanuts or a Diet Coke en route). Plus, because Cheney left the hunt days earlier than the others, the Scalia party had to pay its own way back, and it was cheaper to just buy round-trip fares and not use one leg of the trip than it was to pay for one-way tickets. So, in the final analysis, the justice didn’t save any money by hitching a ride on Air Force 2.

The justice acknowledged that his actions have resulted in painful criticism:

As the newspaper editorials appended to the motion make clear, I have received a good deal of embarrassing criticism and adverse publicity in connection with the matters at issue here—even to the point of becoming (as the motion cruelly but accurately states) "fodder for late night comedians."1

But it would be wrong, argued Justice Scalia, to grant "elements of the press a veto" over a justice’s participation in a case and "would encourage so-called investigative journalists to suggest improprieties, and demand recusals, for other inappropriate (and increasingly silly) reasons."

Justice Scalia set forth a number of other arguments in his opinion, and it would perhaps not be fair to judge his actions without reading the entire document. Most of the American people, however, will never have that opportunity, nor would they take it if offered. But the Justice’s ultimate conclusion has been widely quoted in the press: "Since I do not believe my impartiality can reasonably be questioned, I do not think it would be proper for me to recuse."

I, personally, am inclined to believe that if a justice’s actions cause the public to perceive, even if incorrectly, that a justice may not be impartial, then the public perception of the court is more important than the participation of that justice in a decision. Yet, who judges the public perception? Should the Supreme Court read the polls? Should the opinion of the media opinion be considered the opinion of the public?

Despite my feeling that Justice Scalia’s impartiality could be (and has been) reasonably questioned, as I read his opinion I found myself willing to give him the benefit of the doubt. But then I read the last sentence of the opinion’s penultimate paragraph:

If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined.

I don’t know—he sounded just a little too much like that state senator.

1 Justice Scalia may have been referring to Jay Leno on "The Tonight Show," who described Vice-President Cheney being searched when he entered the White House: "Security made him empty his pockets and out fell Justice Antonin Scalia!" Leno also joked that Cheney and Justice Scalia were still considering whether they had a conflict of interest, and that they would decide "as soon as Halliburton finishes construction on Justice Scalia’s new house."

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