C. A. D. C. Cir. [Certiorari granted,
Memorandum of
I have before me a motion to recuse in these cases consolidated below. The motion is filed on behalf of respondent Sierra Club.
I
The decision whether a judge’s impartiality can “ ‘reasonably be questioned’” is to be made in light of the facts as they existed, and not as they were surmised or reported. See
Microsoft Corp.
v.
United States,
For five years or so, I have been going to Louisiana during the Court’s long December-January recess, to the duck-hunting camp of a friend whom I met through two hunting companions from Baton Rouge, one a dentist and the other a worker in the field of handicapped rehabilitation. The last three years, I have been accompanied on this trip by a son-in-law who lives near me. Our friend and host, Wallace Carline, has never, as far as I know, had business before this Court. He is not, as some reports have described him, an “energy industry executive” in the sense that summons up boardrooms of ExxonMobil or Con Edison. He runs his own company that provides services and equipment rental to oil rigs in the Gulf of Mexico.
During my December 2002 visit, I learned that Mr. Carline was an admirer of Vice President Cheney. Knowing that the Vice President, with whom I am well acquainted (from our years serving together in the Ford administration), is an enthusiastic duck hunter, I asked whether Mr. Carline would like to invite him to our next year’s hunt. The answer was yes; I conveyed the invitation (with my own warm recommendation) in the spring of 2003 and received an acceptance (subject, of course, to any superseding demands on the Vice President’s time) in the summer. The Vice President said that if he did go, I would be welcome to fly down to Louisiana with him. (Because of national security requirements, of course, he must fly in a Government plane.) That invitation was later extended — if space was available — to my son-in-law and to a son who was joining the hunt for the first time;
We departed from Andrews Air Force Base at about 10 a.m. on Monday, January 5, flying in a Gulfstream jet owned by the Government. We landed in Patterson, Louisiana, and went by car to a dock where Mr. Carline met us, to take us on the 20-minute boat trip to his hunting camp. We arrived at about 2 p.m., the 5 of us joining about 8 other hunters, making about 13 hunters in all; also present during our time there were about 3 members of Mr. Carline’s staff, and, of course, the Vice President’s staff and security detail. It was not an intimate setting. The group hunted that afternoon and Tuesday and Wednesday mornings; it fished (in two boats) Tuesday afternoon. All meals were in common. Sleeping was in rooms of two or three, except for the Vice President, who had his own quarters. Hunting was in two- or three-man blinds. As it turned out, I never hunted in the same blind with the Vice President. Nor was I alone with him at any time during the trip, except, perhaps, for instances so brief and unintentional that I would not recall them — walking to or from a boat, perhaps, or going to or from dinner. Of course we said not a word about the present case. The Vice President left the camp Wednesday afternoon, about two days after our arrival. I stayed on to hunt (with my son and son-in-law) until late Friday morning, when the three of us returned to Washington on a commercial flight from New Orleans.
II
Let me respond, at the outset, to Sierra Club’s suggestion that I should “resolve any doubts in favor of recusal.” Motion to Recuse 8. That might be sound advice if I were sitting on a Court of Appeals. But see
In re Aguinda,
Even so, recusal is the course I must take — and will take— when, on the basis of established principles and practices, I have said or done something which requires that course. I have recused for such a reason this very Term. See
Elk Grove Unified School Dist.
v.
Newdow,
A
My recusal is required if, by reason of the actions described above, my “impartiality might reasonably be questioned.” 28 U. S. C. § 455(a). Why would that result follow from my being in a sizable group of persons, in a hunting camp with the Vice President, where I never hunted with him in the same blind or had other opportunity for private -conversation? The only possibility is that it would suggest I am a friend of his. But while friendship is a ground for recusal of a Justice where the personal fortune or the personal freedom of the friend is at issue, it has traditionally not been a ground for recusal where official action is at issue, no matter how important the official action was to the ambitions or the reputation of the Government officer.
A rule that required Members of this Court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling. Many Justices have reached this Court precisely because they were friends of the incumbent President or other senior officials — and from the earliest days down to modern times Justices have had close personal relationships with the President and other officers of the Executive. John Quincy Adams hosted dinner parties featuring such luminaries as Chief Justice Marshall, Justices Johnson, Story, and Todd, Attorney General Wirt, and Daniel Webster. 5 Memoirs of John
It is said, however, that this case is different because the federal officer (Vice President Cheney) is actually a
named party.
That is by no means a rarity. At the beginning of the current Term, there were before the Court (excluding habeas actions) no fewer than 83 cases in which high-level federal Executive officers were named in their official capacity — more than 1 in every 10 federal civil cases then pending. That an officer is named has traditionally made no difference to the proposition that friendship is not considered to affect impartiality in official-action suits. Regardless of whom they name, such suits, when the officer is the plaintiff, seek relief not for him personally but for the Government; and, when the officer is the defendant, seek relief not against him personally, but against the Government. That is why federal law provides for
automatic substitution
of the new officer when the originally named officer has been replaced. See Fed. Rule Civ. Proe. 25(d)(1); Fed. Rule App. Proc. 43(c)(2); this Court’s Rule 35.3. The caption of Sierra Club’s complaint in this action designates as a defendant “Vice President Richard Cheney,
in his
Richard Cheney's name appears in this suit only because he was the head of a Government committee that allegedly did not comply with the Federal Advisory Committee Act (FACA), 5 U. S. C. App. § 2, p. 1, and because he may, by reason of his office, have custody of some or all of the Government documents that the plaintiffs seek. If some other person were to become head of that committee or to obtain custody of those documents, the plaintiffs would name that person and Cheney would be dismissed. Unlike the defendant in
United States
v.
Nixon,
The recusal motion, however, asserts the following:
“Critical to the issue of Justice Scalia’s recusal is understanding that this is not a run-of-the-mill legal dispute about an administrative decision. . . . Because his own conduct is central to this case, the Vice President's ‘reputation and his integrity are on the line.' (Chicago Tribune.)” Motion to Recuse 9.
I think not. Certainly as far as the legal issues immediately presented to me are concerned, this
is
“a run-of-the-mill legal
The recusal motion asserts, however, that Richard Cheney’s “ ‘reputation and his integrity are on the line’ ” because
“respondents have alleged, inter alia, that the Vice President, as the head of the Task Force and its sub-groups, was responsible for the involvement of energy industry executives in the operations of the Task Force, as a result of which the Task Force and its sub-groups became subject to FACA.” Ibid.
As far as Sierra Club’s
complaint
is concerned, it simply is not true that Vice President Cheney is singled out as having caused the involvement of energy executives. But even if the allegation had been made, it would be irrelevant to the case. FACA assert-edly requires disclosure if there were private members of the task
To be sure, there could be political consequences from disclosure of the fact (if it be so) that the Vice President favored business interests, and especially a sector of business with which he was formerly connected. But political consequences are not my concern, and the possibility of them does not convert an official suit into a private one. That possibility exists to a greater or lesser degree in virtually all suits involving agency action. To expect judges to take account of political consequences — and to assess the high or low degree of them — is to ask judges to do precisely what they should not do. It seems to me quite wrong (and quite impossible) to make recusal depend upon what degree of political damage a particular case ’can be expected to inflict.
In sum, I see nothing about this case which takes it out of the category of normal official-action litigation, where my friendship, or the appearance of my friendship, with one of the named officers does not require recusal.
B
The recusal motion claims that “the fact that Justice Scalia and his daughter [sic] were the Vice President’s guest on Air Force Two on the flight down to Louisiana” means that I “accepted a sizable gift from a party in a pending case,” a gift “measured in the thousands of dollars.” Motion to Recuse 6 (footnote omitted).
Let me speak first to the value, though that is not the principal point. Our flight down cost the Government nothing, since
The principal point, however, is that social courtesies, provided at Government expense by officials whose only business before the Court is business in their official capacity, have not hitherto been thought prohibited. Members of Congress and others are frequently invited to accompany Executive Branch officials on Government planes, where space is available. That this is not the sort of gift thought likely to affect a judge’s impartiality is suggested by the fact that the Ethics in Government Act of 1978, 5 U. S. C. App. § 101
et seq.,
p. 38, which requires annual reporting of transportation provided or reimbursed, excludes from this requirement transportation provided by the United States. See §109(5)(C); Committee on Financial Disclosure, Administrative Office of the U. S. Courts, Financial Disclosure Report: Filing Instructions for Judicial Officers and Employees 25 (Jan. 2003). I daresay that, at a hypothetical charity auction, much more would be bid for dinner for two at the White House than for a one-way flight to Louisiana on the Vice President’s jet. Justices accept the former with regularity. While this matter was pending, Justices and their spouses were invited
(all
of them, I believe)
Ill
When I learned that Sierra Club had filed a recusal motion in this case, I assumed that the motion would be replete with citations of legal authority, and would provide some instances of cases in which, because of activity similar to what occurred here, Justices have recused themselves or at least have been asked to do so. In fact, however, the motion cites only two Supreme Court eases assertedly relevant to the issue here discussed, 3 and nine Court of Appeals cases. Not a single one of these even involves an official-action suit. 4 And the motion gives not.a single instance in which, under even remotely similar circumstances, a Justice has recused or been asked to recuse. Instead, the argument section of the motion consists almost entirely of references to, and quotations from, newspaper editorials.
The core of Sierra Club’s argument is as follows:
“Sierra Club makes this motion because .. . damage [to the integrity of the system] is being done right now. As of today, 8 of the 10 newspapers with the largest circulation in the United States, 14 of the largest 20, and 20 of the 30 largest have called on Justice Scalia to step aside.....Of equal import, there is no counterbalance or controversy: not a single newspaper has argued against recusal. Because the American public, as reflected in the nation’s newspaper editorials, has unanimously concluded that there is an appearance of favoritism, any objective observer would be compelled to conclude that Justice Scalia’s impartiality has been questioned. These facts more than satisfy Section 455(a), which mandates recusal merely when a Justice’s impartiality ‘might reasonably be questioned.’ ” Motion to Recuse 3-4.
The implications of this argument are staggering. I must recuse because a significant portion of the press, which is deemed to be the American public, demands it.
The motion attaches as exhibits the press editorials on which it relies. Many of them do not even have the facts right. The length of our hunting trip together was said to be several days (San Francisco Chronicle), four days (Boston Globe), or nine days (San Antonio Express-News). We spent about 48 hours together at the hunting camp. It was asserted that the Vice President and I “spent time alone in the rushes,” “huddled together in a Louisiana marsh,” where we had “plenty of time ... to talk privately” (Los Angeles Times); that we “spent . . . quality time bonding [together] in a duck blind” (Atlanta Journal-Constitution); and that “[t]here is simply no reason to think these two did not discuss the pending case” (Buffalo News). As I have described, the Vice President and I were never in the same blind, and never discussed the case. (Washington officials know the rules, and know that discussing with judges pending cases — their own or anyone else’s — is forbidden.) The Palm Beach Post stated that our “transportation [was] provided, appropriately, by an oil services company,” and Newsday that a “private jet . . . whisked Scalia to Louisiana.” The Vice President and I flew in a Government plane. The Cincinnati Enquirer said that “Scalia was Cheney’s guest at a private duck-hunting camp in Louisiana.” Cheney and I were Wallace Carline’s guests. Various newspapers described Mr. Carline as “an energy company official” (Atlanta
And these are just the inaccuracies pertaining to the
facts.
With regard to the
law,
the vast majority of the editorials display no recognition of the central proposition that a federal officer is not ordinarily regarded to be a personal party in interest in an official-action suit. And those that do display such recognition facilely assume, contrary to all precedent, that in such suits mere political damage (which they characterize as a destruction of Cheney’s reputation and integrity) is ground for recusal. Such a blast of largely inaccurate and uninformed opinion cannot determine the recusal question. It is well established that the recusal inquiry must be “made from the perspective of a
reasonable
observer who is
informed of all the surrounding facts and circumstances.” Microsoft Corp.
v.
United States,
IV
While Sierra Club was apparently unable to summon forth a single example of a Justice’s recusal (or even motion for a Justice’s recusal) under circumstances similar to those here, I have been able to accomplish the seemingly more difficult task of finding a couple of examples establishing the negative: that recusal or motion for recusal did not occur under circumstances similar to those here.
The first example pertains to a Justice with whom I have sat, and who retired from the Court only 11 years ago, Byron R. White. Justice White was close friends with Attorney General Robert Kennedy from the days when White had served as Kennedy’s Deputy Attorney General. In January 1963, the Justice went on a skiing vacation in Colorado with Robert Kennedy and his family, Secretary of Defense Robert McNamara and his family, and other members of the Kennedy family. Skiing Not The Best; McNamara Leaves Colorado, Terms Vacation “Marvelous,” Denver Post, Jan. 2, 1963, p. 22; D. Hutchinson, The Man Who Once Was Whizzer White 342 (1998). (The skiing in Colorado, like my
Besides these cases naming Kennedy, another case pending at the time of the skiing vacation was argued to the Court
by Kennedy
about two weeks later. See
Gray
v.
Sanders,
The second example pertains to a Justice who was one of the most distinguished occupants of the seat to which I was appointed, Robert Jackson. Justice Jackson took the recusal obligation particularly seriously. See,
e. g., Jewell Ridge Coal Corp.
v.
United Mine Workers,
In April 1942, the two “spent a weekend on a very delightful house party down at General Watson’s in Charlottesville, Virginia. I had been invited to ride down with the President and to ride back with him.”
Id.,
at 106 (footnote omitted). Pending at the time, and argued the next month, was one of the most important cases concerning the scope of permissible federal action under the Commerce Clause,
Wickard
v.
Filburn,
I see nothing wrong about Justice White’s and Justice Jackson’s socializing — including vacationing and accepting rides — with their friends. Nor, seemingly, did anyone else at the time. (The Denver Post, which has been critical of me, reported the White-Kennedy-McNamara skiing vacation with nothing but enthusiasm.) If friendship is basis for recusal (as it assuredly is when friends are sued personally) then activity which suggests close friendship must be avoided. But if friendship is no basis for recusal (as it is not in official-capacity suits) social contacts that do no more than evidence that friendship suggest no impropriety whatever.
Of course it can be claimed (as some editorials have claimed) that “times have changed,” and what was once considered proper — even as recently as Byron White’s day — is no longer so. That may be true with regard to the earlier rare phenomenon of a Supreme Court Justice’s serving as advisor and confidant to the President — though that activity, so incompatible with the separation of powers, was not widely known when it was occurring, and can hardly be said to have been generally approved before it was properly abandoned. But the well-known and constant practice of Justices’ enjoying friendship and social intercourse with Members of Congress and officers of the Executive' Branch has not been abandoned, and ought not to be.
V
Since I do not believe my impartiality can reasonably be questioned, I do not think it would be proper for me to recuse. See
My recusal would also encourage so-called investigative journalists to suggest improprieties, and demand recusals, for other inappropriate (and increasingly silly) reasons. The Los Angeles Times has already suggested that it was improper for me to sit on a case argued by a law school dean whose school I had visited several weeks before — visited not at his invitation, but at his predecessor’s. See New Trip Trouble for Scalia, Feb. 28, 2004, p. B22. The same paper has asserted that it was improper for me to speak at a dinner honoring Cardinal Bevilacqua given by the Urban Family Council of Philadelphia because (according to the Times’s false report)
5
that organization was engaged in litiga
As I noted at the outset, one of the private respondents in this case has not called for my recusal, and has expressed confidence that I will rule impartially, as indeed I will. Counsel for the other private respondent seek to impose, it seems to me, a standard regarding friendship, the appearance of friendship, and the acceptance of social favors, that is more stringent than what they themselves observe. Two days before the brief in opposition to the petition in this case was filed, lead counsel for Sierra Club, a friend, wrote me a warm note inviting me to come to Stanford Law School to speak to one of his classes. (Available in Clerk of Court’s case file.) (Judges teaching classes at law schools normally have their transportation and expenses paid.) I saw nothing amiss in that friendly letter and invitation. I surely would have thought otherwise if I had applied the standards urged in the present motion.
There are, I am sure, those who believe that my friendship with persons in the current administration might cause me to favor the Government in eases brought against it. That is not the issue here. Nor is the issue whether personal friendship with the Vice President might cause me to favor the Government in cases in which
he
is named. None of those suspicions regarding my impartiality (erroneous suspicions, I hasten to protest) bears upon recusal here. The question, simply put, is whether someone who thought I could decide this case impartially despite my
As the newspaper editorials appended to the motion make clear, I have received a good deal of embarrassing criticism and adverse publicity in connection with the matters at issue here — even to the point of becoming (as the motion cruelly but accurately states) “fodder for late-night comedians.” Motion to Recuse 6. If I could have done so in good conscience, I would have been pleased to demonstrate my integrity, and immediately silence the criticism, by getting off the case. Since I believe there is no basis for recusal, I cannot. The motion is
Denied.
Notes
The questions presented in the petition, and accepted for review, are as follows:
“1. Whether the Federal Advisory Committee Act (FACA), 5 U. S. C. App. 1, §1 et seq., can be construed ... to authorize broad discovery of the process by which the Vice President and other senior advisors gathered information to advise the President on important national policy matters, based solely on an unsupported allegation in a complaint that the advisory group was not constituted as the President expressly directed and the advisory group itself reported.
“2. Whether the court of appeals had mandamus or appellate jurisdiction to review the district court’s unprecedented discovery orders in this litigation.” Pet. for Cert. (I).
As my statement of the facts indicated, by the way, my daughter did not accompany me. My married son and son-in-law were given a ride — not because they were relatives and as a favor to me; but because they were other hunters leaving from Washington, and as a favor to them (and to those who would have had to go to New Orleans to meet them). Had they been unrelated invitees to the hunt, the same would undoubtedly have occurred. Financially, the flight was worth as little to them as it was to me.
The motion cites a third Supreme
Court case, Public Citizen
v.
Department of Justice,
United States
v.
Murphy,
The Times’s reporter had interviewed the former president of the Urban Family Council, who told him categorically that the council was neither a party to, nor had provided financial support for, the civil-union litigation. The filed papers in the case, publicly available,
showed
that the council was not a party. The Los Angeles Times nonetheless devoted a lengthy front-page article to the point that (in the words of the lead sentence) “Justice Antonin Scalia gave a keynote dinner speech in Philadelphia for an advocacy group waging a legal battle against gay rights.” Serrano & Savage, Scalia Addressed Advocacy Group Before Key Decision, Mar. 8, 2004, at'Al. Five days later, in a weekend edition, the paper printed (at the insistence of the council) a few-line retraction acknowledging that this asserted fact was wrong — as though it was merely one incidental fact in a long piece, rather than the central fact upon which the long piece was based, and without which
there was no story.
See For the Record, Mar. 13,2004, at A2. Other inaccurate facts and insinuations, in the article, brought to the paper’s atten