Never judge a friend

Meanwhile, a litigation was begun by certain NGO groups called the ‘Sierra Club’ and ‘Judicial Watch’. They wanted disclosure of documents and information on the participation of private lobbyists in an Energy Policy Group constituted by President Bush, which was headed by Cheney. It was widely believed that the Energy Group formulated policies at the behest of private interests and powerful corporations. The Sierra Club demanded disclosure of information and records to ascertain violations of law. Such exposures, if adverse to Cheney, would put Cheney’s character and integrity in issue.

The trial court passed limited orders for discovering information and records. The Court of Appeals rejected Cheney’s appeal. Thereupon, Cheney and others moved the Supreme Court of the US. This case was pending in the Supreme Court when Justice Scalia accompanied Cheney for the duck-shoot.

Two Democratic Senators, Joseph Lieberman and Patrick Leahy, complained to Chief Justice Rehnquist about Justice Scalia’s trip, stating that, ‘‘when a sitting judge, poised to hear a case involving a particular litigant, goes on vacation with that litigant, reasonable people will question whether that judge can be a fair and impartial adjudicator of that man’s case.’’

The Sierra Club moved a motion before the Supreme Court asking for Justice Scalia’s recusal. Under United States practice, such motion is referred to only the judge against whom it is directed.

Meanwhile, many prominent national newspapers editorially called for Justice Scalia’s recusal. Justice Scalia also became the butt of many jokes on TV shows. The inimitable Jay Leno, on his Tonight Show on CNBC, joked that when Cheney was visiting the White House, he was embarrassed when security officials made him empty his pockets and out fell Justice Antonin Scalia.

Justice Scalia, in his memorandum, surprisingly argued that the Sierra Club suggestion that he should resolve any doubts in favour of recusal might be sound advice if he was sitting on a ‘Court of Appeals’, as another judge could replace him. His recusal in the Supreme Court, Justice Scalia went on to argue, would mean that the appellant Cheney would require five votes out of eight (instead of nine), which would effectively mean that his recusal was casting a vote against Dick Cheney. Justice Scalia’s concern for his friend was thus apparent. He rejected Sierra Club’s argument that the Vice-President’s own conduct was central to the case and his reputation and integrity were on the line.

‘‘To be sure,’’ Justice Scalia said, ‘‘there could be political consequences from disclosure of the fact (if it be so) that the Vice-President favoured 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.’’

The Federal Law for all US judges states: ‘‘Any Justice, Judge or Magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.’’

The US Supreme Court itself, in another case, speaking through Justice Scalia noted: ‘‘What matters is not the reality of bias or prejudice but its appearance. Quite simply and quite universally, recusal was required whenever impartiality might reasonably be questioned.’’ Obviously, Justice Scalia did not apply this standard to himself.

Contrast Justice Scalia’s stance with that of the House of Lords in England in the famous case of the Argentinian Military Dictator General Pinochet. The House of Lords set aside its own decision against General Pinochet on the ground of bias of Lord Hoffmann, who was Director and Chairperson of Amnesty International Charity Ltd. The charity belonged to the same group as Amnesty International Ltd, which was a participant and a party as intervener. The House of Lords held that Lord Hoffmann was disqualified on the ground that he was in the position of a party to the action and was automatically disqualified. The Court reiterated the principle that justice should not only be done but should undoubtedly be seen to be done. The test was whether any circumstance or event gave rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the judge was not impartial.

Our Supreme Court, in a series of cases, has affirmed the principle of reasonable likelihood of bias disqualifying a judge. Justice Venkatachaliah affirmed the principle laid down by Justice Frankfurter that: ‘‘But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment.’’

It is difficult for a reasonable person to appreciate Justice Scalia’s stand. It stretches credulity beyond breaking point. He consciously refused to recuse himself because it would be unfair to Cheney. In the process, he was unfair to the court and the concept of impartial justice.

(The writer is a senior advocate in the Supreme Court)