The New York Times
March 18, 2004

 

Scalia Angrily Defends His Duck Hunt With Cheney

By STEVE TWOMEY
 

 

Justice Antonin Scalia of the United States Supreme Court today bluntly rejected demands that he step aside in a case involving Vice President Dick Cheney, mocking criticism that a duck hunting trip the two were on in January suggested he would be biased toward his longtime friend.

Hours later, the Sierra Club, which had formally asked Justice Scalia not to participate in a case it had brought against the vice president, said it would take no more legal action against the justice, even though it believed his ``recusal was still warranted'' to ensure public faith in the integrity of the court.

In a 21-page memorandum filled with scorn and with lessons in the ways of Washington, Justice Scalia wrote that if people assumed a duck hunting trip would be enough to swing his vote, ``the nation is in deeper trouble than I had imagined.''

He said that throughout American history, justices have been friends with high-ranking government officials, and that as recently as Christmas other justices socialized with Mr. Cheney at the vice president's home.

``A rule that required members of this court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling,'' Justice Scalia wrote.

During the hunting trip to Louisiana, which the memorandum said involved 13 hunters as well as Mr. Cheney's security detail, ``I never hunted in the same blind with the vice president,'' he said.

``Nor was I alone with him at any time during the trip,'' he continued, ``except, perhaps, for instances so brief and unintentional that I would not recall them - walking to or from a boat, perhaps, or going to or from dinner. Of course we said not a word about the present case.''

Three weeks before the trip, the court agreed to hear an appeal of a case in which the Sierra Club sought information about who had participated in private meetings of Mr. Cheney's energy task force in 2001. Justice Scalia's decision to go hunting with someone who had litigation pending before the court prompted editorial pages across the country to echo the Sierra Club's belief that the public might believe he could not render an impartial ruling.

David Bookbinder, the Washington legal director of the Sierra Club, said in a telephone interview today that ``it would have been terrific'' if Justice Scalia had explained in January how little contact he had had with Mr. Cheney during their outing. Bookbinder cited specifically Justice Scalia's statement in the memorandum that flying to Louisiana on Mr. Cheney's jet did not constitute accepting a prohibited gift because he flew back on a commercial airline, buying a round-trip ticket and not saving ``a cent.'' If the public had known all the details, the outcry might not have been as great, Mr. Bookbinder said.

He added, however, that Justice Scalia had failed to be forthcoming earlier, allowing the perception to grow that he might not be impartial in the Cheney case. Therefore, Mr. Bookbinder said, he still should step aside.

In his memorandum, Justice Scalia suggested that he had an obligation to recuse himself if the personal fortune or freedom of a friend were at stakebut not if the issue was a friend's official actions, as he argued was the case with Mr. Cheney.

He said the Sierra Club had failed to cite any precedent in which a justice had recused himself from a case involving a friend's official action. The club, instead, had relied largely on newspaper editorials that had questioned whether he could be impartial in the Cheney case, he said.

``The implications of this argument are staggering,'' Justice Scalia wrote. ``I must recuse because a significant portion of the press, which is deemed to be the American public, demands it.'' He went on to point out what he said were mistakes in numerous editorials about the hunting trip, citing newspapers by name.

Justice Scalia has excused himself from cases before. He decline to participate in a case this year that involved whether the words ``under God'' in the Pledge of Allegiance are unconstitutional. He had expressed a view about the case before it reached the Supreme Court.