Leahy And Lieberman Query High Court
On Ethics Of Scalia Vacation With Cheney

What are the Supreme Court’s Rules on Recusal?

WASHINGTON (Thurs., Jan. 22) -- Judiciary Committee Ranking Member Patrick Leahy, D-Vt., and Governmental Affairs Committee Ranking Member Joe Lieberman, D-Conn., Thursday asked Supreme Court Chief Justice William Rehnquist about issues arising from a hunting trip Justice Antonin Scalia took with Vice President Dick Cheney shortly after the high court agreed to hear a case in which Cheney is the principal party.

            In a letter dated January 22, 2004, the two ranking committee members inquired about Supreme Court "canons, procedures and rules" on whether justices should recuse themselves from cases in which “their impartiality might reasonably be questioned.”

            “When a sitting judge, poised to hear a case involving a particular litigant, goes on vacation with that litigant, reasonable people will question whether that judge can be a fair and impartial adjudicator of that man’s case or his opponent’s claims,” the Senators wrote.

            According to news reports, Scalia joined Cheney on a hunting trip for several days earlier this month just three weeks after the Supreme Court agreed to grant a petition of certiorari in a case involving the secrecy of the Vice President's energy task force and the formulation of Administration energy policy.

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Attached is a copy of the letter and Chief Justice Rehnquist's response:

January 22, 2004

The Honorable William H. Rehnquist
Chief Justice
Supreme Court of the United States
Washington, D.C. 20543

Dear Chief Justice Rehnquist:

It is with regret that we write to inquire about published reports that Justice Antonin Scalia recently spent extended time with Vice President Richard Cheney on an out-of-town trip.  Coming just three weeks after the Supreme Court voted to grant a petition for certiorari in a case in which the Vice President is a principal party, this trip raises questions.  When a sitting judge, poised to hear a case involving a particular litigant, goes on a vacation with that litigant, reasonable people will question whether that judge can be a fair and impartial adjudicator of that man’s case or his opponent’s claims. 

The integrity of our courts and the confidence of the American people depend on judges acting without fear or favor, and section 455(a) of title 28 of the United States Code, which applies to justices as well as other federal judges, requires judges to disqualify themselves if their impartiality might reasonably be questioned.  The standard set in this statute is not a subjective one and it does not require proof of actual bias.  It is intended to protect the American people from both actual bias and the appearance of bias, both of which work to erode public confidence in the fairness of our federal court system.     

In this particular case, Vice President Cheney is a named party and a material witness to the events at issue in the lawsuit the Supreme Court has agreed to hear.  The type of socializing reported recently between this judicial officer and this litigant is not akin to an open meeting between the local bench and bar or ceremonial public contact in the exercise of official duties.  Instead, it appears to have involved contact over several days and nights.  Moreover, the report mentions the use of private jets and facilities provided by an energy industry insider, which may raise additional ethical questions and concerns about the case and the acceptance of such gifts or benefits of such value, under the Ethics in Government Act, Pub. L. No. 95-521 as amended, the Ethics Reform Act of 1989, and ethical canons governing judicial conduct. 

While judges should not be isolated from the society in which they live, they must take special care that their extra-judicial activities do not create a conflict with their judicial duties, give rise to an appearance of impropriety, or create a reason for questioning their impartiality.  As you know, the ethical rules apply to both the public and private conduct of a judge.  While such rules might be considered burdensome to a private citizen they exist to protect the public and to preserve the integrity and independence of the courts. 

Setting aside any evidence of actual bias, the ethical rules recognize that the perpetuation of an appearance of partiality is a threat to public confidence in our federal courts. 

Accordingly, we inquire what canons, procedures and rules are in place for Supreme Court justices to determine whether they must or should recuse themselves under 28 U.S.C. 455(a) or any other relevant ethical rule or interpretation.  We would also like to know what mechanisms exist for obtaining advisory opinions before activities are undertaken and whether any such mechanism was utilized by Justice Scalia before his recent trip with Vice President Cheney.  Further, we inquire whether mechanisms exist for the Supreme Court to disqualify a Justice from participating in a matter or for review of a Justice’s unilateral decision to decline to recuse himself.  Additionally, we would like to know whether the Supreme Court has given any guidance to its Members about the propriety of, and any conditions for, accepting access to private jets for travel to extra-judicial activities. 

You have often observed that the integrity and independence of our federal courts is one of the crown jewels of the American legal system.  We agree.  We thank you for your prompt attention to this important matter.

Sincerely,

 

PATRICK LEAHY                                          JOSEPH I. LIEBERMAN

Ranking Member                                               Ranking Member

Committee on the Judiciary                               Committee on Governmental Affairs

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Click here to view a PDF copy of Chief Justice Rehnquist's response