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 For Immediate Release
Feb 13, 2004 Contact: Press Office
202-646-5188
JUDICIAL WATCH STATEMENT CONCERNING JUSTICE SCALIA AND RICHARD B. CHENEY V. U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA




Judicial Watch has been following, with obvious interest, the recent discussions in the media and elsewhere about the hunting trip taken by Vice President Richard B. Cheney and Justice Antonin Scalia in early January. Judicial Watch is a party in a lawsuit currently before the U.S. Supreme Court regarding Vice President Cheney’s Energy Task Force, Richard B. Cheney v. U.S. District Court for the District of Columbia, No. 03-475, in which the Vice President is a defendant.

Judicial Watch’s attorneys have carefully examined the relevant statutes and legal precedent, the Supreme Court’s practice and procedure governing recusal, and the facts about the hunting trip that have been made public to date. Judicial Watch also has considered the opinions of several, well-respected experts who have commented publicly on the issue, as well as Justice Scalia’s own public comments. Based on this analysis, Judicial Watch has decided that it will not seek to compel the recusal of Justice Scalia at this time.

Under the applicable statute, a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Canon 2A of the Code of Conduct for United States Judges holds that an appearance of impropriety exists only when a reasonable person, “with knowledge of all the relevant circumstances that a reasonable inquiry would disclose,” believes that “the judge’s ability to carry out [his] responsibilities with integrity, impartiality, and competence [has been] impaired.” See Charge of Judicial Misconduct or Disability, 196 F.3d 1285, 1288 (D.C. Cir. Jud. Council 1999). Case law also holds that:
    Reasonable observers understand that federal judges may in the course of their lives have established friendships with those serving in other branches of government; reasonable observers also presume that federal judges, like the vast majority of unelected public officials, are able to disregard the political views of their friends and carry out their responsibilities in a fair and impartial manner.
Charge of Judicial Misconduct or Disability, 85 F.3d 701, 707 (D.C. Cir. Jud. Council 1996) (Tatel, J., concurring). Further, the decision as to whether a Supreme Court Justice should recuse himself or herself from a case is made by the Justice concerned and is not subject to review by the other Justices on the Court.

Judicial Watch does not believe the presently-known facts about the hunting trip satisfy the legal standards requiring recusal. There is no evidence that Justice Scalia discussed the merits of the case with Vice President Cheney, or that he made any extrajudicial statements about the merits of the case, as he did with respect to the Pledge of Allegiance case also pending before the Court.

Justice Scalia has indicated in his public comments on the matter that he believes there is no reason to recuse himself, implying that he believes he can be impartial in hearing the Energy Task Force case. Judicial Watch encourages Justice Scalia to take this matter seriously and, if he has not done so already, make a full and complete disclosure of all facts concerning his hunting trip with the Vice President. Judicial Watch trusts, as it must, that Justice Scalia will take whatever action he believes is appropriate under the circumstances and, in this matter and in all matters before him, be faithful to his oath of office to “administer justice without respect to persons” and to “faithfully and impartially discharge and perform all the duties incumbent upon [him] . . . under the Constitution and the laws of the United States.” 28 U.S.C. § 453.

Note: Before issuing this statement, Judicial Watch provided an advance copy to the Sierra Club as a courtesy. The Sierra Club also is a party to the Energy Task Force litigation. Apparently, the Sierra Club does not agree with Judicial Watch’s position on recusal and intends to request Justice Scalia’s recusal in the near future. However, the Sierra Club also threatened to impugn Judicial Watch’s integrity and motivation in the media if it issued its statement. Differences of opinion about the requirements of the law are not uncommon among litigants. What is uncommon, in Judicial Watch’s view, is for one litigant to threaten to disparage another if they do not agree. Whatever action the Sierra Club might take, Judicial Watch has given substantial consideration to the facts as they are known and the requirements of the law, and continues to believe that its position is the correct one. Judicial Watch would not, and does not, act otherwise.

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