L.A. Times Questions Cheney-Scalia Duck Hunting Trip

Can Justice be blind when a Supreme Court justice spends time in a duck blind with a plaintiff in a case he is about to hear?

That's what the Los Angeles Times wants to know after learning that Justice Antonin Scalia was in a party last week of about nine duck hunters including Vice President Duck Cheney, an old friend of Scalia's.

According to the Times, Scalia and Cheney were duck hunting together "at a private camp in southern Louisiana just three weeks after the court agreed to take up the vice president's appeal in lawsuits over his handling of the administration's energy task force."

Admitting that the two men are both "avid hunters and longtime friends," the Times managed to dig up "several experts in legal ethics" to question "the timing of their trip and raise "doubts about Scalia's ability to judge the case impartially."

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

Commenting on the Times' nitpicking attempt to find reasons why his "impartiality might be questioned," Scalia scoffed at the paper's "concern" last Friday, telling them his joining a party of hunters that included Cheney was just ducky. "I do not think my impartiality could reasonably be questioned," he wrote.

At issue is a case the Supreme Court is due to hear dealing with Cheney's appeal of a lower court decision ordering him to reveal which energy industry officials he met with while he was running the President's task force seeking to help put together an administration energy policy. A lower court ruling held that Cheney must turn over documents detailing who met with his task force but on December 15, the Supreme Court announced it would hear his appeal in April.

In a written response to the Times questions about the hunting trip, Scalia wrote: "Cheney was indeed among the party of about nine who hunted from the camp. Social contacts with high-level executive officials (including cabinet officers) 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. For example, Supreme Court Justices are regularly invited to dine at the White House, whether or not a suit seeking to compel or prevent certain presidential action is pending."

To bolster their "concerns" over this earth shaking revelation that two close friends went duck hunting with about seven other people the Times, in a departure from its usual practice of quoting "anonymous sources" to back up their biased stories, went out and found a real live "expert" to comment, one Stephen Gillers, a New York University law professor, who told them Scalia should have skipped going hunting with Cheney this year.

"A judge may have a friendship with a lawyer, and that's fine. But if the lawyer has a case before the judge, they don't socialize until it's over. That shows a proper respect for maintaining the public's confidence in the integrity of the process," Gillers, touted as "an expert on legal ethics." told the Times "I think Justice Scalia should have been cognizant of that and avoided contact with the vice president until this was over. And this is not like a dinner with 25 or 30 people. This is a hunting trip where you are together for a few days."

Another expert wasn't so sure Scalia should recuse himself from hearing the case.

While saying that he was not convinced that Scalia should withdraw from hearing the Cheney case, Steven Lubet, who teaches judicial ethics at Northwestern University Law School, said the trip raised a number of questions.

"It's not clear this requires disqualification, but there are not separate rules for longtime friends," he said. "This is not like a lawyer going on a fishing trip with a judge. A lawyer is one step removed. Cheney is the litigant in this case. The question is whether the justice's hunting partner did something wrong. And the whole purpose of these rules is to ensure the appearance of impartiality in regard to the litigants before the court."

"The justice had been here several times before. I'm kind of sorry Cheney picked that week because it was a poor shooting week," St. Mary Parish Sheriff David Naquin told the Times. "There weren't many ducks here, which is unusual for this time of the year."

Right on, Scalia said.

"The duck hunting was lousy. Our host said that in 35 years of duck hunting on this lease, he had never seen so few ducks," Scalia wrote to the Times, adding, however, that "I did come back with a few ducks, which tasted swell."

Unlike the Times story, which leaves behind a sour taste.

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