Shouldn't Antonin Scalia recuse himself from the Cheney Secret Energy talks appeal?

[dahunan]

LATIMES password/username is AnandTech AnandTech

From The Los Angeles Times, 1/16/04:
http://www.latimes.com/news/nationworld/nation/la-011604duck_lat,1,7094291.story?coll=la-home-headlines

Cheney Hunting Trip With Scalia Raises Impartiality Questions

By David G. Savage, Times Staff Writer


WASHINGTON --

Vice President Dick Cheney and Supreme Court Justice Antonin Scalia
spent part of last week duck hunting together at a private camp in
south Louisiana, just three weeks after the high court agreed to take
up the vice president's appeal involving lawsuits over his handling of
the administration's energy task force.

While Scalia and Cheney are avid hunters and long-time friends,
several experts in legal ethics questioned the timing of their trip.

"The better part of wisdom should have led Justice Scalia to avoid the
vice president while this case was pending before the court," said New
York University law professor Stephen Gillers.

Federal law says "any justice or judge shall disqualify himself in any
proceeding in which his impartiality might be questioned."

For nearly three years, Cheney has been fighting demands that he
reveal whether he met with energy industry officials, including
then-Enron Chairman Kenneth Lay, when he was formulating the
president's energy policy.

A lower court ruled that Cheney must turn over documents detailing who
met with his task force.

However, on Dec. 15, the high court announced that it would hear his
appeal.

The justices are due to hear arguments in the case in April.

 

[EagleKeeper]

We will know in April.

I am sure that this will be brought up by law people to him.

 

[LunarRay]

Federal law says "any justice or judge shall disqualify himself in any
proceeding in which his impartiality might be questioned."

I am familiar with the determination being left to the discretion of the Judge. This quote indicates some party other than the judge may raise a question as to the impartiality of a judge on a particular issue. I am not aware of that wording. But, it is in the mind of the judge where the impartiality resides and it should be for him to decide. To be otherwise brings in all sorts of 'question generators'. In either or any event, my feelings are that Scalia may recuse himself on the 'Cheney' issue because he has a personal relationship with the VP and that Always has been readily accepted grounds to recuse one self.

edit: well section 455 of title 28 does say about what is quoted above..
" Any justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned."

But it also says they shall... under some conditions..
(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;"


link to the code

 

[chess9]

And if he doesn't recuse himself who is going to do anything about it? The House of Representatives? Bwuahahaha!!

-Robert

 

[EagleKeeper]

Originally posted by: chess9
And if he doesn't recuse himself who is going to do anything about it? The House of Representatives? Bwuahahaha!!

-Robert

Have there ever been a case where it was felt that a SC judge should have removed themself from the case and the judge did not?

The SC judges are usally very careful about those things. Many times I have seen them remove themselves when it did not seem needed.
I think that they err on the side of caution. They know that there actions have a large legal impact and can cause problems (muddy the waters) down the road for other cases.

 

[LunarRay]

Originally posted by: EagleKeeper

Originally posted by: chess9
And if he doesn't recuse himself who is going to do anything about it? The House of Representatives? Bwuahahaha!!

-Robert

Have there ever been a case where it was felt that a SC judge should have removed themself from the case and the judge did not?

The SC judges are usally very careful about those things. Many times I have seen them remove themselves when it did not seem needed.
I think that they err on the side of caution. They know that there actions have a large legal impact and can cause problems (muddy the waters) down the road for other cases.

Justice Thomas should (perhaps) have recused himself in the 2000 Gore v Bush issue.. because of his spouse..

Well here is a link


link

 

[digitalsm]

He can still recuse himself. He can do it at anytime before the ruling.

 

[dahunan]

Originally posted by: digitalsm
He can still recuse himself. He can do it at anytime before the ruling.

But should he be allowed to give input or opinion concerning the case to the other justices?

Should he be allowed to even view the case before the ruling is given?

 

[chess9]

EagleKeeper:

You answered a question that wasn't asked.

Scalia is sui generis. If the man doesn't have the ethical sense to not go shooting with a man who is a litigant before him then why should we think he will have the ethical sense to recuse himself? Oh, well, we'll see.

On the other hand, maybe he doesn't see the suit as one involving Dick Cheney, but rather the Vice President of the United States. One must be mindful that the Supremes are the Supremes because they can sing the "Hair Splitting Aria" in D minor, or any key they bloody well please.

I will be pleasantly surprised if he recuses himself.

-Robert

 

[dahunan]

From the link provided by Lunar Ray

Kathy Arberg, a spokesman for the Supreme Court, said she had no comment on the accusations of a conflict of interest. The Court has also been unwilling to comment on a suggestion from Gore campaign aides that Justice Antonin Scalia should consider recusing himself because his son works for a firm that represents Mr. Bush.

His Son, who is a Lawyer, helped work on THE case in favor of Senor Bush .. seems like his Father should not be allowed to judge the case *confusing

 

[chess9]

Dahunan:

Excellent point, sir. It is the mere appearance of impropriety that is to be avoided.

But, God will not be likely to skip her bowling league to intervene. Mastering the 7-10 split is infinitely-more or less-important.

Absent divine intervention who will punish the excesses of the judiciary?

-Robert

 

[LunarRay]

The crucial vote in B v G in the 2000 case was 5/4 (the other was 7/2) but, if Scalia and Thomas recused themselves it would have been 4/3 to sustain the Florida Supreme Court.. so .. in that case our President became President as well as Cheney became VP and all by virtue of the extremely right minded Justices. Maybe they stayed on for the good of the nation.... as they saw it.. and will see it that way again soon.

changed 7/3 to 7/2