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In New Jersey, R.1:1-1 provides that a judge is disqualified “on the court’s own motion and shall not sit in any matter . . . when there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or might reasonably lead counsel to the parties to believe so.” Canon 3C(1) of the Code of Judicial Conduct adds “a judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . “ Sometimes the refusal or failure to disqualify has been the subject of public criticism. So it was when Chief Justice Deborah Poritz, without providing reasons, failed to disqualify herself in the Abbott school funding cases although she had participated actively in the funding issues when serving as counsel to the governor. Our rules provide no remedy for that failure. Even more intensive criticism is being leveled at U.S. Supreme Court Justice Antonin Scalia’s refusal to disqualify himself from hearing a case involving Vice President Richard Cheney. The vice president headed an energy-policy task force. Congress suspected that some of its members and other participants had conflicts of interest because they represented energy businesses. It therefore asked for details of the task force proceedings, including the names of participants. The vice president refused, arguing that the information was protected by executive privilege and the separation of powers doctrine. The Sierra Club and Judicial Watch sued him, seeking an order requiring him to honor the request. The suit is pending before the U.S. Supreme Court. Recently, Justice Scalia, a longtime friend of Cheney, and a Scalia daughter were flown to a private duck-hunting haven in Louisiana as guests of the vice president. The haven’s owner is in the oil business. Under the circumstances, should Scalia disqualify himself from participating in the pending case against the vice president? Numerous articles in the press have discussed the case at length, often quoting ethics experts, most of whom say he should. Federal statutes (28 U.S.C. Sec. 455), like the New Jersey Code, require that “any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” [and whenever he has] “a personal bias or prejudice concerning a party.” According to Richard E. Flamm’s book, Judicial Disqualification, disqualification is required “not only when [a judge] possesses actual bias against a party, but whenever a reasonable person would have reasonable grounds to question the neutral and objective character of a judge’s rulings or findings.” Informal Supreme Court rules require disqualification motions to be heard by the justice in question, whose decision is not appealable. There is no requirement that decisions be accompanied by reasons, a unique circumstance in a court of law. When questioned, Scalia said he saw no reason to disqualify himself from participating in the Cheney case. He wrote to The Los Angeles Times: “I do not think my impartiality could reasonably be questioned,” he said in a written response to the Times. “He said ‘social contacts’ between justices and high-level government officials have not been seen as improper, even when those officials have cases in the courts that concern ‘their official capacity, as opposed to their person capacity,’” according to the Feb. 5 edition of the newspaper. Any straightforward reading of the law tells us that the justice is wrong. The existence of the Scalia-Cheney friendship alone is reasonably calculated to create bias. In addition, the free trip, lodging, meals and hunting activities received by the justice constituted a gift of considerable value. Security requirements are very expensive. According to the press, Cheney, Scalia and his daughter traveled in one plane; a second carried the Cheney staff. Rescue helicopters were in place. The hunting reserve was ringed with armored vehicles, federal agents and sheriff’s deputies. Other aircraft were not permitted to fly over the area. The justice stayed at the camp for several days. The gift, even without the friendship, is disqualifying. The absence of rules, the requirement that the justice whose impartiality is questioned must hear a motion to disqualify, the absence of any requirement for the giving of reasons and the lack of any appellate mechanism, would, in any other contested court setting, lack due process. It appears that Scalia, unless he changes his mind, can refuse to withdraw for any reasons or no reasons. That does not become the highest court in the land. Haines is a retired Burlington County assignment judge and former president of the State Bar Association whose column appears monthly in the Law Journal.

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