Robert P. Lawry

Duck and Cover

When Arthur Goldberg accepted the position as Secretary of Labor in President John F. Kennedy's administration, he pledged that he would never again practice labor law. Formerly a highly successful lawyer in that field, Goldberg was making the ultimate professional sacrifice, declaring that he would forfeit the possibility of earning a substantial future income, lest others think he was using his government service to enhance his own pocketbook.

No binding rule of law required Goldberg to make such a decision. Rather, he did so because he grasped what the appearance of impropriety was all about; because he recognized what even reasonable people might suspect to be a strong motive for accepting the Kennedy appointment in the first place. Goldberg understood professional ethics. I thought of the Goldberg story as I read Supreme Court Justice Antonin Scalia's 21-page defense of his own refusal to recuse himself in a case currently before the Court involving his good friend, Vice President Dick Cheney. Unlike Arthur Goldberg, Justice Scalia just doesn't get it.

As anyone who has picked up a paper or turned on the news knows by now, Antonin Scalia and Dick Cheney went on a duck-hunting vacation together earlier this year, joined by less than a dozen other people. The trip took place three weeks after the Supreme Court agreed to hear the Vice President's case, in which the Sierra Club and Judicial Watch, Inc. are asking the Court to require Cheney to reveal who attended his 2001 Energy Task Force meetings.

Shortly after the vacation, the Sierra Club filed a motion to recuse Justice Scalia, pursuant to a Federal statute that mandates the disqualification of a Federal judge "in any proceeding in which his impartiality might reasonably be questioned." Clearly the Sierra Club relied heavily on the phrase "might reasonably be questioned" when drafting its motion, writing: "Eight out of the 10 newspapers with the largest circulation, 14 out of the largest 20, and 20 of the largest 30 have called on Justice Scalia to step aside ...Of equal import, there is no counterbalance or controversy: not a single newspaper has argued against recusal." In other words, because the test under the statute is an objective one -- specifically, what an impartial observer might make of the basic facts -- the Sierra Club was pointing out just how unanimously Scalia's actions were being observed.

In his disdainfully written defense, Justice Scalia scoffs at the overwhelming numbers of editorial writers arguing for him to step aside. From a purely legal point of view, this implies that, to Justice Scalia, all of these newspapers people are evidently, de facto, unreasonable. Or maybe he simply believes that the editorial writers -- all of them -- are prejudiced against him for one reason or another. Either way, Justice Scalia takes a tack that is, at best, badly off-center, and at worst, disingenuous.

He begins by revealing details about the hunting trip: He and the Vice-President never discussed the case while on the vacation, he claims, and never even hunted in the same blind together. Futhermore, he says, they never shared more than a brief, casual comment to one another throughout the three-day trip.

This argument misses the point. The issue here is not the itinerary of the trip nor the activities engaged in but, instead, the fact that the trip itself even took place. Whether the Justice and the Vice President did or didn't engage in a little shop talk while unloading gear from the car is not germane to the argument for recusal. All that is needed is the appearance of impropriety -- in this case, what a reasonable person might make of a judge vacationing with a litigant. Justice Scalia responds to this argument with the lament, "If it is reasonable to believe a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined." Curiously, this bit of logic is all too common among those accused of engaging in a wrongful conflict of interest -- namely: Sure, it might look bad, but I didn't actually cross the line. Obviously, this argument is irrelevant, in that the Justice's mere presence on the trip raises reasonable questions about his impartiality.

Justice Scalia further argues that, since his elaboration of the facts shows that nothing improper occurred, he can only conclude that the true reason for the motion to disqualify him is based on the friendship itself. He then rightly suggests how wrong-headed that would be: Friendships between Justices and Executive Branch officials are inevitable, he says, and the reasonable person understands this. But what is troubling is the manner in which these potentially complicated friendships are handled. Private vacations with litigants are simply not the same thing as an invitation to a state dinner. Timing is also crucial. With a case pending before a court, shouldn't the litigants, the lawyers and the judges be even more circumspect than usual in maintaining their friendships?

Justice Scalia apparently did his homework on this point, recalling a skiing trip taken during the Kennedy Administration by Attorney General Robert Kennedy and Justice Byron White. At the time, two cases were pending before the Supreme Court in which the Attorney General was a named party, and a third which Kennedy was, contrary to his custom, going to argue personally.

"This was Kennedy's only argument before the Court," writes Scalia, "and it certainly put 'on the line' his reputation as a lawyer, as well as an important policy of his brother's administration." Citing this situation as historical precedent, Scalia concludes by saying he saw nothing wrong with it. My verdict? He very well should have seen something wrong with it, as it instantly calls into reasonable question the impartiality of the vacationing judge.

So the question remains: If this recusal rule does not speak to actual impropriety, why do we have it in the first place? Because, despite our best intentions, we are all human, and in the legal profession, we require distancing guidelines to keep us from unwittingly permitting our personal feelings to spill over into the professional; to help us preserve the preciousness of our friendships and the honor of our work by keeping them separate.

No, I don't believe Justice Scalia (or any Supreme Court Justice, for that matter) can be bought so cheaply by a flight of convenience on Air Force Two, or even a duck-hunting trip. But I do believe that, had Justice Scalia not so willingly traded his well-earned black robe for a hunting jacket -- had he simply said, "No thanks, Mr. Vice President, not this time" -- he would have gone a long way toward telling us a little bit about his grasp of the ethical nuances of the law and, more importantly, the true value of his judgment.

Robert P. Lawry is the Director of the Center for Professional Ethics at Case University School of Law in Cleveland, Ohio.

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