Legislative recusal - and Scalia

[Bryan Wildenthal]

With all respect, Marty's points are almost wholly unpersuasive. It was certainly not "almost a fortuity" that the case involves Cheney himself.  Cheney, unlike the "other senior advisers," is the Vice-President, widely viewed (with good reason, I think) as the most powerful and influential VP in US history. And unlike other cases involving the general power of the govt to detain people, etc, Cheney was *personally* involved in the transactions involved here, and those transactions involve great potential to embarrass him personally, since they involve allegedly unseemly involvement of powerful corporate lobbyists and interests in formulating executive policy. It's utterly different from Cheney's involvement in administration policies on other matters, which he may care about at some abstract level, and may have had some involvement in framing, but are not nearly so personally associated with him, with such a potential for personal embarrassment.
 
In any event, Justices certainly should also avoid similar personal outings and favors with/from the President, the Sec. of Defense, and any "other senior advisers," any of which would raise similar recusal concerns in my view.
 
Bryan Wildenthal
Thomas Jefferson School of Law
 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Marty Lederman
Sent: Tuesday, February 17, 2004 4:06 PM
To: Toplak Jurij; Douglas Laycock
Cc: conlawprof at lists.ucla.edu
Subject: Re: Legislative recusal - and Scalia


I agree with Doug that it was probably unwise, and/or unseemly, for Scalia to go duckhunting with Cheney, especially if (as recounted in news stories) Cheney paid for the trip.  But even if it we all agreed that Scalia should not have gone hunting with Cheney, I have no idea what should follow from that as a matter of recusal.  In particular, it seems fairly arbitrary to me for everyone to be focusing only on the Cheney case.  Of course, that case happens to involve Cheney himself, as a defendant in his official capacity.  But that's almost a fortuity -- the same legal issue could have been raised with respect to almost any White House official.  (The Question Presented refers to "the process by which the Vice President and other senior advisors gathered information to advise the President on important national policy matters.")  The Court now has before it several other cases -- Hamdi, Padilla, the Gitmo cases, etc. -- that obviously implicate Administration policies that are very important to the President and to the VP and that presumably the VP's Office had a substantial hand in establishing or implementing.  I think that Cheney probably cares a lot more about the outcome of those cases than he does about the statutory construction of FACA at issue in Cheney, and that there's much more of a likelihood that he discussed with Scalia the issues surrounding those terrorism cases, at least at a broad level of generality (e.g., the Administration's asserted need to be much more aggressive in obtaining intelligence from those in custody), than that he discussed the questions of statutory construction that the Court will address in Cheney.  It's also much more likely that Scalia's vote on the terrorism cases would have (or would be perceived to have) a much greater potential impact on Scalia's friendship with Cheney than would his vote in the Cheney case itself.  All of the cases involve the legality of Administration policies.  To be sure, as a technical matter an adverse judgment and injunction would run against different officials in the various cases:  In Cheney, against the VP; in Padilla, against Rumsfeld; in Rasul, against the President.  But it seems odd to me that this formal distinction should have much, if any, bearing, on recusal questions.  If Scalia had gone hunting with Rumsfeld, should the question of recusal really be different as to Padilla than as to Rasul, just because Runsfeld is a named defendant in the former but not the latter?  I don't know what the proper answers on recusal ought to be here; but I share what I take to be one of Scalia's reactions -- namely, that the fact that Cheney happens to be named as a defendant in his official capacity in a particular case ought not be the dispositive consideration.

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