Sierra Club Wants Scalia To Sit Out Task Force Case
By Charles Lane
Washington Post Staff Writer
Tuesday, February 24, 2004; Page A19
An environmental organization suing for access to the records of Vice President Cheney's energy policy task force asked Supreme Court Justice Antonin Scalia to disqualify himself from the case yesterday, telling the court that Scalia's January duck-hunting trip with Cheney had created "an appearance of impropriety."
In a 14-page motion for recusal filed with the Supreme Court last night, the Sierra Club argued that "by the objective standard required by federal law, Justice Scalia's impartiality has reasonably been called into question, and he must be recused."
Although Scalia's trip with Cheney has been the subject of controversy for weeks, the Sierra Club's motion raises the stakes because it is the first time a party to the case has embraced the view that Scalia's participation in the case would violate the law.
It is not clear what, if anything, Scalia and the other justices are required to do in response to the Sierra Club's motion. In another recent case, Scalia recused himself after Michael A. Newdow, a California atheist challenging the phrase "under God" in the Pledge of Allegiance, filed papers suggesting that Scalia's impartiality could be questioned because of comments he had made about an appellate ruling in the case.
But the justices ordinarily treat recusal decisions as a matter of individual judgment, unless a colleague specifically asks for advice. In the Cheney case, Scalia has already told the Los Angeles Times that he does not believe his impartiality could reasonably be questioned.
The case involves lawsuits by the Sierra Club and a conservative watchdog group, Judicial Watch, which believe that Cheney is resisting disclosure of the energy task force's records to cover up the undue influence of industry lobbyists on its deliberations.
For his part, Cheney says that the groups are on a fishing expedition, and that the task force is not covered by a federal law that would require disclosure of the internal workings of certain government commissions.
The U.S. Court of Appeals for the D.C. Circuit sided with the Sierra Club and Judicial Watch last year, prompting Cheney's appeal to the Supreme Court. If Scalia were to withdraw from the case and the remaining justices split 4 to 4, the D.C. Circuit's ruling would be affirmed.
The court announced on Dec. 15 that it would hear the case. On Jan. 5, Scalia and one of his daughters flew to Louisiana with Cheney on an official aircraft. Scalia and the vice president hunted ducks on the private property of Wallace Carline, president of an energy services company.
Though the vice president is a named party in the case, Cheney v. U.S. District Court, No. 03-475, he does not face a civil fine or criminal penalties in the case -- a fact that Scalia has said is crucial to his decision not to recuse.
"Social contacts with high-level executive officials . . . 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," Scalia told the Times.
In its motion, however, the Sierra Club noted that Cheney's personal decisions and conduct are at issue in the case.
The Sierra Club buttressed its argument with citations of federal court cases in which judges were required to recuse over similar relationships with participants in cases before them -- and of critical references to Scalia's conduct from newspaper editorials, editorial cartoons and even monologues by comedian Jay Leno.
"The national media reflects the American public's great concern about the continuing damage this affair is doing to the prestige and credibility of this Court," the Sierra Club said in its motion.
Judicial Watch decided not to join the Sierra Club in asking for Scalia's recusal.
"We don't think the motion for recusal has a factual or legal basis," said Tom Fitton, president of Judicial Watch. "To the degree it distracts the court's attention from the issue at hand, which is Dick Cheney's power grab . . . it's not helpful."
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