Scalia recusal: If it quacks like bias…

When recusal arises it has been and should be each justice’s decision.

This April the United States Supreme Court will hear Vice President Dick Cheney’s appeal to court rulings ordering him to release documents detailing the activities of his Energy Task Force. A few weeks ago, Cheney and Supreme Court Justice Antonin Scalia took a hunting vacation together, which was partially paid for by an energy company. This creates an appearance of partiality on Scalia’s part and, while the decision is properly his own, Scalia should recuse himself from the case of In re Richard B. Cheney.

When recusal arises it has been and should be each justice’s decision. The attention to this matter results from congressional complaints. This is, however, all the input Congress should have. Any attempt for either the legislature or executive to remove a justice from a case is an anathema to the separation of powers, and rightfully so, given that the Supreme Court frequently has to decide the limits of congressional and executive power.

The Supreme Court should not have a procedure to remove a justice for bias. All people are biased in various ways. Each justice must be responsible for ascertaining his or her impartiality. In short, if Scalia is not fit to decide this question, he is not fit to decide anything.

Because no other proper method of recusal works in our democracy, judges and justices must recuse themselves if their “impartiality may be reasonably questioned,” as guided by federal law. The question is not whether Cheney attempted to influence Scalia’s opinion on the matter, but rather, have Scalia’s actions caused people to reasonably question his impartiality.

Scalia at times reprimands society, Congress and even his fellow justices for failing to see the obvious solution to a question. It would seem painfully obvious, from the storm of media coverage and public complaints alone, that a judge taking a vacation with a litigant that is partially funded by another interested party will lead the public to reasonably question that judge’s impartiality.