wilbjammin

Thought question: Do we really have division of powers in our country?

Scalia Was Cheney Hunt Trip Guest; Ethics Concern Grows

Is this ethical? What do you think?

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MrSmashy

No, and Scalia knows it.

Fraternizing with someone who will have their case heard in your court brings in major questions of impartiality. Its nice if they are friends and all, but would Scalia not see a problem if a judge in, let's say the Michael Jackson case, came in every day wearing an Michael Jackson shirt, asking for autographs and taking him out for dinner? No. He'd say there is a problems. Or even how about just asking for an autograph? No. Its innappropriate and would require him to be removed.

However, Scalia seems to think the law only should be applied to others - probably those he disagrees with politically.

onetime2

I wouldn't necessarily say it's a conflict as I know of plenty of morally upright people who could separate friendship and the law. I would hope that a Supreme Court Justice would be able to do it as well. Of course, I think it's idiotic to be going duck hunting with someone who will be before you since it, at the very least, begs the question of whether he can be impartial.

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prb

Any Federal judge should step aside in any case where his or her "impartiality might be questioned." The question has already been raised, and with good reason. Scalia should step aside and recuse himself from this case.

But I'll bet he doesn't.

Kadath

And the problem is that now Clarence Thomas isn't impartial either, as he's Scalia's lapdog and goes along with him on everything. Lousy Supreme Court.

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Scipio

They also went duck hunting with my governor a couple of years ago. Big Mike Huckabee.

http://www.accessarkansas.org/governor/

And it doesn't matter if it's a conflict of interest or not. The important thing is that it looks like a conflict. Appearence is, in this case, everything.

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prb

I was right. Scalia announced yesterday that he won't recuse himself. Pay up, everybody.

onetime2

Umm, no one said that he would.

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dy156

I really thought about starting another thread on this, because I'd like ya'll to read these court documets about the case, and let me know your opinions. However, this was the topic of this thread, and it wasn't too long anyway.

I'm reminded of law school, when I would actually read full Supreme Court opinions. The majority would explain the decision it made, and it all sounded perfectly reasonable. Then I would read the Scalia dissent, and think, "Damn! I'm still glad the other side won, but you know, he's right. Glad I'm not a Supreme Court Justice."
If there are other lawyers here, they can probably back me up on this. Scalia likes to go off into historical precedent, and I have to grudgingly admit that he pretty much sticks to his principles, and not render outcomes based on the results, no matter how good those results might be, but stick to what is legally and factually right. (pardon the pun, what is legally and factually correct.) There's no grudgingly about it, I freely admit that he (or his law clerks) is (are) one of the most persuasive writers on the high court.

I'll let ya'll decide, though.

Here is the link to the Sierra Club's motion seeking Scalia's recusal:

http://news.findlaw.com/hdocs/docs/s...2304scrbrf.pdf

(both of these are in pdf format, so I can't paste the articles.)

Sounds fairly compelling, right? All those newspapers around the country calling for his recusal make it sound pretty reasonable that his impartiality could be called into question.

However, his response:

http://a257.g.akamaitech.net/7/257/2...pdf/03-475.pdf

made me have one of those, "Damn, he's right." moments.
While I don't buy his "The Supreme Court won't be able to recover or have the same stature" argument found late in the memorandum, the rest of his position is very persuasive.

There is historical precedent for not recusing oneself from a case involving a personal friend in their official government capacity. He's recused himself from the pledge of allegience/under God case this term because of statements he made, but he shouldn't here, because the issue to be decided is not personal to the V.P. None of those editorials had their facts straight.

Well, I won't attempt to summarize the whole thing, but suffice it to say, he certainly convinced me. I urge you all to read both of these documents, not just one or the other, and draw your own conclusions, then let us know.

j8ear

Did only one person actually read Scalia's decision not to recuse himself.

He bitch slapped the Sierra Club, it's lawyers and several 'mainstream' media sources, as worthless and reaching.

Appearance of impropriety created by nothing more then shoddy reporting of inaccurate facts.

It's less then 30 pages of a wide margined pdf document.

Read it.

There is absolutely zero reason that Scalia should recuse himself from hearing this case, and I am glad he didn't.

He convinced me too.

-bear

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pan6467

My concern and it is overlooked is how much did this vacation cost the taxpayers? I am quite tired of millionaire politicians paying for vacations with my tax dollars. Especially when I can't afford to go on vacation because the governemnt takes all my money in income taxes, sales taxes, property taxes, gasoline taxes, internet taxes, telephone taxes, marriage license tax, driver's license tax, car registration tax, and all the hidden taxes I haven't mentioned.

As for the Scalia/Cheney it'll come out and hurt Bush in the election. Although, and call me a conspiracist, the more flagrant Bush and Co. get like this the more I wonder if they have a fix in on the election. Seriously, I mean come on Clinton did some stupid things but compared to this crowd he's a saint and they persecuted him over made up bullshit and shit they had to dig hard for. Yet, they don't seem to care how bad any thing they do looks.

Either they have a fix in and KNOW they will win and therefore they know they can get away with anything...........OR they think the people are to stupid and don't care and will reelect them no matter what.

I say the fix is in. Makes me wonder how these great "patriotic" talking heads like Limbaugh, O'reilly, Hannity, Beck and so on live with themselves. Well we know how Limbaugh does it he just pops Oxys.

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I just love people who use the excuse "I use/do this because I LOVE the feeling/joy/happiness it brings me" and expect you to be ok with that as you watch them destroy their life blindly following. My response is, "I like to put forks in an eletrical socket, just LOVE that feeling, can't ever get enough of it, so will you let me put this copper fork in that electric socket?"

onetime2

He had me convinced fully by the 5th page. As stated earlier, I have full faith that Supreme Court Justices are capable of separating personal feelings from the interpretation of the law. I suggested that recusal was proper for fear of the impression of impropriety but, gaining an understanding from Justice Scalia's memo, I've reconsidered.

Since there is a standing agreement among Justices that even in the case of family members being involved in the case recusal is not mandated, and that each recusal puts additional burdens on other Justices I see no problem with him hearing the case.

Further, he absolutely drives the point home in two other contentions. The first being that his recusal would immediately hurt the case of the petitioner and help the Sierra Club by eliminating a potential vote.

Secondly, and the most important of all IMO, setting the precedent of recusal in cases where their is a personal relationship among those appearing before the Court would hamstring the Court's ability to function in its role of checks and balances within the three arms of government. Since, almost without fail, sitting Supreme Court Justices have attained their positions at least in part through personal relationships with those appointing them, it would greatly limit the Court's ability to conduct business.

There is no doubt in my mind that Scalia should NOT recuse himself.

[edit] How long before someone complains about Scalia's use of a round trip ticket for one way use? Most airlines have policies against it. [/edit]

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Sparhawk

Bingo. I detest the man and most everything he stands for, but going hunting with someone who didn't actually spend any personal time with you? Well, there's nothing there...

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Superbelt

Scalia invited Cheney a year ago on an all expenses paid duck-hunting vacation. Everything was paid for. The jet, vacation and location were all provided by the owner of an oil rig service company, Wallace Carline. Cheney was already fighting in federal court to avoid revealing whether his energy policy, designed to funnel billions of dollars of taxpayer money to companies like Carline's, was largely created by the energy industry. It was obvious that the case would be appealed to the Supreme Court if Cheney lost.

Code of Conduct for US Judges.
QUACK, QUACK

There's a quote floating around of where Scalia defends the notion of the need for Judges to recuse themselves under the appearance of impropriety.
I'm having a hard time finding it though.

onetime2

Did you read Scalia's memo? The Supreme Court does not act in the same way as other courts.

While a "normal" judge can be replaced, a Supreme Court Justice can not and any recusal changes the face of the process.

Further, your facts pertaining to the trip appear to be in error. The jet used on the trip down was US government property and the return trip was via commercial airline paid for by Scalia and his relatives.

If you're interested in Scalia quotes:

"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."

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j8ear

You obviously did not read the decision as every single one of your assertions above is a complete and utter fabrication.

Lies if you will.

QUACK QUACK QUACK indeed.

-bear

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Superbelt

I did read the decision and I think it's bullshit and is just a fancy way of saying he is above the law.

Liteky v. United States (1994)
The new catchall recusal provision, covering both 'interest or relationship' and 'bias or prejudice' grounds." When "such a high degree of favoritism or antagonism as to make fair judgment."

(Want the whole decision? look it up on www.findlaw.com)

Scalia himself WROTE the majority opinion Liteky v. United States which is the standard now for Judicial recusal, and he used Liteky as his justification to recuse himself in the Supreme Courts Pledge of Alliegance case.

Why could he recuse himself so readily in that case but not this one?

Whether there was impropriety or not, there is a marked perception that shady things could have gone on there. You recuse yourself. Let the case work itself out. The case can come to a conclusion in a split decision.

That's what it boils down to.

smooth

I don't agree with this conclusion. While I'm not going to debate whether the two actually interacted during the hunt, they obviously spent time together during the flight.

If everything was already set up, and he had round trip tickets, and knowing full well the political/media climate surrounding Cheney and his "questionable" dealings, why not just skip the flight? I read his reasons for doing so, but I'm not convinced that he took appropriate steps. It's fairly obvious to me that they had plenty of time to speak about the case and still truthfully claim they couldn't have done so "during" the hunt. I suppose we aren't supposed to pick up on that discrepancy in his explanation and, to our discredit, we haven't.

Superbelt

And to this I will admit I was wrong. I researched it more and saw that the jet was a government jet.

Still the vacation package was provided by a litigant in the Cheney energy-task force case. That is improper.

pan6467

Sounds to me he made up his mind without even hearing the case if "his recusal would eliminate a vote against Sierra Club."
Judges are not supposed to even predict how they will rule UNTIL they hear the evidences in court.

Sounds to me like Scalia has already shown his bias.

__________________
I just love people who use the excuse "I use/do this because I LOVE the feeling/joy/happiness it brings me" and expect you to be ok with that as you watch them destroy their life blindly following. My response is, "I like to put forks in an eletrical socket, just LOVE that feeling, can't ever get enough of it, so will you let me put this copper fork in that electric socket?"

dy156

I wanted to try and clarify something. I'm not trying to argue for Scalia. Indeed, as I said, I initially thought he should recuse himself based on his personal friendship. I don't think many people contend that Liteky is controlling precedant here.

Liteky dealt not with personal relations, but with statements made by the judge that reflect that the judge has a bias one way or another in the issues being decided, or where the judges prior rulings display "deep-seated and unequivocal antagonism that would render fair judgment impossible." While I'm not entirely familiar with the facts of the pledge of allegience case, from what I understand, Scalia made some comments about how he thinks the pledge is good and schoolkids should say it or something. This presents evidence that he is biased in a case about the propriety of having schoolkids say the pledge of allegiance. That's why he recused himself from that case. He has not made similar statements about how he thinks government should always produce or not produce documents in a discovery dispute, or how he thinks that there is a proper way for the federal government to name committee members. Nor has he written opinions that display a deep seated and unequivocal antogonism for or against the government in discovery disputes or in identifying committee members. Those are the issues in the Cheney case, and he is not recusing himself from it, in part because he has not expressed his opinion on those issues outside of court.
The other reason is, of course, the bulk of his memorandum explaining why his personal relationship to the vice president does not provide sufficient reason for him to recuse himself from a suit against the Vice Pres. in the V.P's official capacity.

Okay, now back to the discussion of what you think.

edit:if you want to look up that case, this might be helpful:

Liteky v. U.S.
114 S.Ct. 1147 (1994)

j8ear

Wrong again. A litigant? Are you sure you read the decision?

Remember the old adage about stopping the digging when your in a hole?

READ THE DECISION. It's miniscule and informative. There is a link to it above straight from the supremecourtus.gov website.

Don't read synopsis', or editorials of the decision from findlaw....read the actual decision Scalia filed with the court.

You are entitled to your opinion that Scalia is a snake who is above the law, and will improperly hear and render an opinion on a case. That I will always respect. For goodness sakes stop backing your opinion up with inaccurate, even false assertions.

-bear

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Superbelt

I don't think Liteky is that limited.

Scalia wrote ""This, it is the appearance of partiality - and not actual bias -- that is the test for recusal under Section 455(a) ... The judge's actual state of mind, purity of heart, incorruptibility, or lack of partiality are not the issue."

Scalia is making part of his arguement on the basis that he recusing himself will harm the perception of the workings of the court. That should not be considered as they are expressly "not the issue."

Additionally, as pan pointed out, he has made statements already that have prepositioned him against the petitioners.

Superbelt

Why would you think I would go to an editorial or synopsis when the actual decision is readily available? (at findlaw)

"Litigant" being 'Industry' in general, specifically Wallace Carline's company. They have a gain involved in keeping the extent of industrys involvement in public policy a secret.

j8ear

I think that because EVERY SINGLE assertion you have presented so far has been FALSE....and in direct contradiction to the FACTS as laid out in both the petion for recusal and the decision denying the petition.

The 'industry' as a litigant? Do you really believe that? Could you then also conclude that because the Sierra Club is a litigant that any Justice so environmentally inclined should also recuse h**self? Even former ACLU (since the ACLU filed an amicus brief) attorneys who now sit on the bench should recuse themselves...how about just plain old Democrat...since obviously a democrat will surely vote against the Republican Administrations office of the veep?

None-the-less, I remain committed to respecting your opinion, regardless of how you reached it...with facts, falsehoods, or prejudice.

I still reserve the right to point out the folly of your opinion forming process. Hopefully keeping true to the respect for others policy that guides our interactions.

-bear

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onetime2

You are making an incorrect inference here. The statement does not point to any sort of predetermined outcome. It simply points out that a recusal equates to a vote against the petitioner.


Additionally, no one here who claims that Scalia is biased because of his "friendship" has answered how the Supreme Court could function if every Justice had to recuse themselves in every case where they have or had a relationship with those involved in a case before them. By the very nature of Supreme Court Appointments the Justices have relationships with Presidents, Vice presidents, Senators, Representatives, District Attorneys, State and Federal Attorney Generals, Federal Prosecutors, countless other government employees, and, of course, legal professionals and scholars.

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Superbelt

http://caselaw.lp.findlaw.com/script...s/510/540.html

direct quote. I don't see anything I have said contradicting this opinion. And any curious chaps can go to the link, which is the text of the actual decision written by Scalia, and decide for themselves.

Yes I do believe the 'industry' is a litigant. By extension. It is their actions and influence which is the crux of this entire case. They have a vested interest in maintaining Cheney's policy.

onetime2

I definitely have to disagree here, the case is about the process, selection of members of a government task force,and disclosure of records associated with the task force. It's not about the industry.

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Superbelt

What would some of you supporting Scalia, say, if Clinton invited Justice Kennedy and some friends to go on vacation. During "Jones" All vacation expenses paid by MoveOn?

(That's as parallel as I can get it, and that is pretty similar.)
[And this is a personal matter, not something that affects government policy]

Answer to yourselves honestly.

onetime2

Obviously the facts of this case are still proving elusive for you.

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Superbelt

Obviously.

onetime2

I honestly don't get it SB, you are usually pretty good about backing up your arguments and discussing alternative points. Of course, I don't agree with you on just about everything, but this time you seem to be spouting things that are already proven to be untrue and disregarding any alternative points.

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Superbelt

Sorry but I still see "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." as all the justification needed to call for his recusal.

I of course would be happy entertain impartial, expert analysis of what Liteky v United States entails. Or even if anyone else here wants to weigh in on their opinion of the applicability of that ruling.

I also don't believe I have been proven untrue. Unless you, j8ear or dy156 are attorneys.

onetime2

The "facts" as you describe them have been completely wrong since you first posted in this thread. The trip was not paid for by the company you identify, the industry and the company are not "plaintiffs", and you never answered the question with regard to all personal relationships that Justices will inevitably have and the supposed conflict they entail. You also completely ignore the point that a District Judge is not the same as a Supreme Court Justice.

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Kadath

Hey, guys? You're sort of being jackasses to each other. Maybe if everyone stopped calling each other stupid and uninformed, that would be good.

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onetime2

In all truth I don't see where we are calling each other stupid or uninformed. In comparison to a good portion of posts in the politics realm I consider this a pretty civil discourse.

I haven't taken offense to anything SB has said, and I don't think he's taken offense to my posts (they certainly weren't meant to be offensive, and if he did I apologize).

I've pointed to areas where he has been mistaken in the facts and to points that he has purposely not commented on.

He has pointed to a specific piece of case law that he feels applies to this situation and asked for "expert" opinion on it, basically saying that I don't know how to interpret it from a legal perspective (which is a perfectly valid opinion).

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Superbelt

I identify the oil extraction company very broadly as a litigant, which is a party engaged in a lawsuit. This is because they have an interest in the outcome and they had input in preparing the policy that is at the center of this lawsuit. If you don't like me using that word, pretend I'm not using it and instead replace it with "Party of Interest"
I have seen in several different places that this trip was paid for by the oil company.

I am not sure what you are specifically looking for me to answer here. Please explain this out a bit more.

I don't ignore that a district justice is different from the Supreme Court. A dj can be replaced much more easily and thus should be able to be recused more easily. But a SC justice can also be recused and I believe the nature of the relationship and circumstances surrounding the vacation they took together (At one point Scalia did have Cheney "alone" with his son and son-in-law for a long period of time on a plane) falls under the notion of "impartiality being reasonably questioned".

onetime2

Scalia points to other examples in his discourse where Supreme Court Justices have been socially acquainted with Presidents and others who are "Parties of Interest".

A completely fictitious and extreme example of what I'm talking about would be something like this:
A legal professor (or a President, or Federal judge, etc) who has maintained a social or mentoring relationship with several past students (or law partners, classmates, etc) who go on to be Justices of the Supreme Court brings a case to the Court. Do all of these Justices then recuse themselves leaving the case (which obviously has substantial legal implication since it's gotten that far) without any possibility of gaining the 5 Judge concensus?

Or perhaps a President with a legal background ends up in the odd position of having appointed a majority of the Justices who he had social connections to. How could the Supreme Court make decisions in cases where that President has an interest? If Supreme Court Justices had to recuse themselves in this situation, the checks and balances system of our government would obviously be broken.

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Kadath

I thought this
was a little snide.

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dy156

Ding-Ding-Ding

Alright, having read the case, and being an attorney, I'll submit to this challenge!

The facts of Litecky were an appeal following a motion to recuse a judge that had presided over the earlier trial of a criminal defendant, and had ruled against the defendant several times in the earlier trial. As I stated before, that case really has little to do with the Duck Hunting incident, because no one has suggested that Scalia has exhibited a prejudice in his rulings or opinions, or on the issues presented on this granting of cert.
Nevertheless, you are correct in quoting the statute. Subsection (a) is a "catch-all" designed to encompass any relationship, situation, or prejudice not specifically enumerated in subsection(b). Subsection (b) reads:

"(b) He shall also disqualify himself in the following circumstances:
"(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
"(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
"(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
"(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
"(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
"(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
"(ii) Is acting as a lawyer in the proceeding;
"(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
"(iv) Is to the judge's knowledge likely to be a material witness in the proceeding."

You could make the argument that (b)(1) applies, but as the Court noted, rules of statutory construction favor an interpretation of the relationships noted in (b) being limits to (a). Apparently the Seirra Club focused on subsection (a). It was the plain meaning of the language of the statute, coupled with the number of newspaper editorials, that initially made me think he should recuse himself. However, I thought Scalia did an admirable job of explaining why it was not reasonable to question his impartiality. One of the reasons given was that those editorials were based on inaccurate facts. When there is no real legal authority, for either side, you can use real arguments to make your point. That's why the facts of the case are so important.