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Scalia Does Not See Case With Cheney As Cause For Recusal

By Michael Janofsky

The New York Times -- WASHINGTON

Invoking history, law and the upper social strata of Washington, Justice Antonin Scalia said on Thursday he would not remove himself from a case before the Supreme Court involving his good friend Vice President Dick Cheney.

In a 21-page memorandum, a rare public explanation and rarer still for describing what it means to have friends in the highest of places, Scalia said it was not improper that he hunted ducks in Louisiana with Cheney in December, just three weeks after the court agreed to consider the case.

Scalia not only justified his participation in the case, he disclosed new details of the trip -- “I never hunted in the same blind with the vice president,” he wrote.

He also recounted other cases in which presidents and justices socialized as if friendship were far more important than any concerns about appearance. Citing historical accounts, he wrote of a time when Justice Harlan F. Stone “tossed around a medicine ball with members of the Hoover administration mornings outside the White House,” and when Chief Justice Fred M. Vinson “played poker with President Truman.” And who could forget those days when Justice John Marshall Harlan and his wife sang hymns at the White House with President Rutherford B. Hayes or when Justice Byron R. White skied in Colorado with Attorney General Robert F. Kennedy?

In a more contemporary glimpse into the coziness of Washington’s elite, Scalia wrote, “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, he said, were appointed to the court “precisely because” they were friends with the president or other senior officials.

Scalia argued forcefully in his memorandum that friendship is only a basis for recusal “where the personal fortune or the personal freedom of the friend is at issue,” not a friend’s actions on behalf of government.