March 9, 2004

Court Reputation at Stake in ‘Conflicts’

By Steven Lubet, professor, Northwestern University School of Law

In a country where no person is supposed to be above the law, it is disturbing to watch Supreme Court justices ignoring basic principles concerning conflicts of interest. Supreme Court Justice Antonin Scalia thinks it was just fine that he went on a Louisiana hunting trip with Vice President Dick Cheney, even though Cheney had a major case pending in the Supreme Court right at that time. But there is no point complaining to Chief Justice Rehnquist about his colleague's open chumminess with a litigant. He believes that Scalia ought to be the sole judge of his own impartiality, and everyone else should just butt out.

Both men are wrong, but Rehnquist's position is particularly troubling because it involves the Supreme Court's overall handling of disqualification issues. Scalia only made an error of judgment, accepting the hunting trip and then digging in by refusing to disqualify himself when his judgment was questioned. Rehnquist, on the other hand, has announced a rule that prevents such mistakes from ever being corrected. He has committed the Supreme Court to an each-justice-decides-alone position that places individual decisions beyond review.

As to Scalia, the more we learn about his duck hunt, the worse it looks. According to the first reports, Cheney and Scalia were the mutual guests of Wallace Carline, the owner of an oil services company, at a private lodge in southern Louisiana. That might not have raised eyebrows, save for the timing of the hunt, which began barely three weeks after the Supreme Court, with Scalia's participation, agreed to hear Cheney's appeal in a highly sensitive case.

The law requires a justice to disqualify himself in any proceeding "in which his impartiality might reasonably be questioned." Responding to a written inquiry from the Los Angeles Times, Scalia brushed off any concerns about his impartiality. The joint vacation was the equivalent of attending a White House dinner or a Christmas party, he said, while confirming that the vice president was among the group "of about nine who hunted from the camp." His statement, however, omitted some important facts. As was later reported, the two men were not merely contemporaneous guests of a common host. In fact, Cheney provided Scalia's transportation on Air Force Two, and it appears that he brought Scalia's daughter along as well.

Scalia has also argued that the underlying cases involves the vice president only in his "official capacity," but the matter is potentially far more personally embarrassing to Cheney than an ordinary lawsuit about the interpretation of a statute or an allocation of funds. Two public interest groups have charged that Cheney's National Energy Policy task force conferred secretly with energy executives (perhaps including Enron's Kenneth Lay), while unlawfully withholding records of the meetings. Cheney has resisted all disclosure requests, based on assertions of privacy and executive privilege.

Chief Justice Rehnquist has significantly compounded the problem. Responding to a letter from Senators Patrick Leahy (D. VT.) and Joseph Lieberman (D. CT), Rehnquist dismissed their inquiry about the appearance of partiality as "ill considered," admonishing them that "it has long been settled that each Justice must decide such a question by himself." But that is a mischaracterization. In the world of law, an issue becomes

" settled" only after it has been litigated and decided by a court, usually with a cogent opinion. There has never been any litigation, or even public discussion, of the Supreme Courtís recusal policy. Apart from the nine justices, no other judge in the United States exercises unreviewable discretion when his or her impartiality is in issue. There is no good reason for the members of the Supreme Court to arrogate such power to themselves. Human beings, after all, are notoriously bad at evaluating their own motives or objectivity, and worse still when it comes to assessing likely public reactions. That is why a federal statute requires all federal judges to step aside whenever their "impartiality might reasonably be questioned."

It may be too late to do anything about Scalia's inexplicable determination to participate in the Cheney case; he shows no willingness to change his mind. But it is not too late to address the broader policy problem. Disqualification questions are serious matters for the United States Supreme Court, which depends on public confidence for its legitimacy. Chief Justice Rehnquist could easily calm the waters by referring disqualification decisions to the court itself. If he continues to duck the question, however, Congress should step in by

enacting a statute mandating full consideration every time a justice's impartiality is in issue. Ultimately, the reputation of he United States Supreme Court is at stake. Surely, that should not rest in the hands of a single justice.

Steven Lubet, professor at Northwestern University School of Law, is a specialist in judicial ethics.