To Recuse, or Not to Recuse?
By Tara Ross
The nation's editorial pages have been ablaze with criticism of Supreme Court Justice Antonin Scalia. Why the fuss? The Justice, you see, refused to recuse himself from a case pending before the Court. He had been called upon to do so because he went on a duck-hunting vacation with a group of people that included his friend Vice President Dick Cheney, one of the defendants in the case.
The motion requesting that Scalia recuse himself was filed by the Sierra Club, the environmental group that filed suit against the Vice President. The motion did not allege that Scalia and Cheney spent time alone together, nor did it allege that Scalia and Cheney spent time talking about the case. While the Sierra Club noted that "the public believes" that Scalia accepted a gift from Cheney, it never alleged that Scalia actually did accept an improper gift.
The Sierra Club couldn't allege actual impropriety, so it tried the next best thing. Much of its motion for recusal rests upon a claim that "the American public, as reflected in the nation's newspaper editorials, has unanimously concluded that there is an appearance of favoritism."
Essentially, Scalia is being asked to recuse himself because he has been attacked viciously in the media and people are beginning to wonder what all the fuss is about.
Can media attacks, in and of themselves, cause so much damage that a Justice--otherwise qualified to hear a case--must step down?
Scalia's response was "no." Applying such a rule, he notes "would give elements of the press a veto over participation of any Justices who had social contacts with, or were even known to be friends of, a named official. That is intolerable."
He is absolutely correct. But I'll take it one step further. It is intolerable to give our liberal press such a veto power over the Supreme Court. The result would be constant recusals by Scalia, Rehnquist, and Thomas. The remaining Justices would likely be exempt from such abuse of power by the press.
For those who don't think the media are biased in choosing which Justices to harp on, consider:
Many editorialists have cited Scalia's friendship with Cheney as a factor that requires him to step down. Yet, if friendship is such a powerful argument for recusal, it should work both ways. In late 2000, rumors flew that a good friendship between Justice Stephen Breyer and Al Gore could impact the outcome in Bush v. Gore. Imagine the outrage if such rumors had surfaced about a friendship between Justice Clarence Thomas and George W. Bush. It makes no sense for the mainstream media to ignore a potential Breyer problem, while latching on to the Scalia/Cheney friendship. Surely the personal stakes for Gore were higher in his case than the stakes are for Cheney in this one.
Second, Justices Ruth Bader Ginsburg and Sandra Day O'Connor have publicly expressed doubts about the quality of lawyers in death penalty cases. Ginsburg has even gone so far as to support a moratorium on the death penalty. Yet, no outcry from the media. Would journalists be so deafeningly silent if the Justices had been conservatives expressing staunch support for the death penalty? Would they not say that the Justices had "predetermined" how to rule?
Contrast, again, with Scalia. Scalia recently recused himself from the currently pending Pledge of Allegiance case. He did so because he made a few, off-the-cuff statements about the Pledge. His comments led to instant public criticism by many who claimed that he was "prejudging" the case.
Last, where are the outcries demanding that Ginsburg recuse herself from cases in which the NOW Legal Defense and Education Fund is involved? Ginsburg is a well-known advocate for feminist issues who has publicly affiliated herself with NOW. In fact, NOW holds an annual lecture, the Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law.
The press can not be entrusted with the sole power to determine which Justice gets to sit on which case.
Justices should of course step down if their impartiality is compromised or if legal standards dictate. Similarly, the media have a duty to bring important facts regarding Justices' biases to light, if and when they discover such a bias.
However, Justices do not need to step down simply because journalists have begun to rant and rave at random. The media have a duty to be responsible and accurate in their reporting. Inflaming the American public without cause will only serve to undermine our court system.
If the Justice attending the hunting party in question had been Stevens, Breyer, or Souter, rather than Scalia, it is doubftul that recusal would ever have been demanded.
This flap over Scalia's hunting trip is much ado about nothing.
Tara Ross is an attorney and a writer residing in Texas.
