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When the U.S. Supreme Court denied review in a little-noticed case involving the Republic of Croatia in October 2002, Croatia’s lawyer in the case remembers doing a double take when he saw the court’s order. The order indicated that Justice Antonin Scalia had recused in Kahvedzic v. Republic of Croatia, and Tomislav Kuzmanovic was mystified. “I still have absolutely no idea why he did that,” said Kuzmanovic, a Milwaukee-based partner at Hinshaw & Culbertson, who represented Croatia. As far as he knew, nobody connected to the case, which involved a property dispute in Bosnia, had any connection to Scalia. Scalia did not explain his recusal — justices rarely do — but his motivation may have been revealed in a financial disclosure form he filed the following year: Scalia reported that he had been reimbursed by Croatia for a trip to meet Croatian judges in July 2002, just before the case came before the court. The trip to Zagreb was one of 15 subsidized trips Scalia took that year. The appearance of conflict caused by the trip seems to have been Scalia’s logic then. But so far, Scalia has resisted the same rationale when it comes to his now-famous duck-hunting trip with Vice President Dick Cheney in January, shortly after the court had agreed to take up a case that involves Cheney. The furor over Scalia’s trip with Cheney has cast a spotlight on the murky world of Supreme Court recusals, where justices decide to recuse — or not — without review by their fellow justices or by any other body. A survey conducted by Legal Times, a publication of American Lawyer Media, indicated wide disparity in the number of times justices recuse, from Justice Stephen Breyer recusing the most often (averaging 42 times per year) to Chief Justice William Rehnquist recusing the least (seven times per year). The attention on recusals is likely to continue because of a motion filed Feb. 24 by the Sierra Club, a party in the Cheney case. Asserting that Scalia “accepted a sizable gift from a party in a pending case” in the form of travel aboard Air Force Two for Scalia and his daughter to the Louisiana duck hunt, the motion asks Scalia to step aside in the Cheney case. Scalia has not responded, but in a Jan. 16 letter to The Los Angeles Times said flatly, “I do not think my impartiality could reasonably be questioned.” Scalia may or may not budge now that he has been formally asked to recuse, but even if he decides to stay in the case, the controversy may continue to sail into uncharted waters. The Sierra Club’s lawyer, veteran Supreme Court advocate Alan Morrison, said if Scalia does not recuse, he will ask the full court to review Scalia’s decision — a request that would bump up against the court’s long-standing tradition of leaving recusal decisions to the justice in question, and no one else. “The whole court has the power to consider it if it wants to,” said Morrison. “It cannot be that if, say, Scalia owned stock in a company involved in a case, but he refused to recuse, that the rest of the court would have nothing to say.” One omen of how Morrison’s strategy will be received came as soon as the Sierra Club motion was filed. In keeping with the court’s tradition on recusals, Supreme Court Clerk William Suter treated the filing as a suggestion to Scalia alone, not a motion to the entire court — which means the other eight justices won’t even receive copies of it. Dozens of newspaper editorials have demanded that Scalia remove himself from the Cheney case and asked why justices’ recusal decisions are beyond review. Democratic lawmakers have urged the court to establish standards and procedures for handling and accounting for recusals. The only answer so far from the court was a frigid statement from Rehnquist that it was “ill-considered” for members of Congress to suggest when justices should recuse. When the controversy ultimately dies down, most court watchers think nothing will change, and the court will continue in its unique status above review. Congress, which in 1980 mandated disciplinary councils for all the circuit courts, is traditionally reluctant to intrude on the Supreme Court’s prerogatives — even though Congress has passed laws dictating matters as fundamental as how many justices the court should have and when the court term begins. The Judicial Conference of the United States is equally reluctant to set policy for the court. The conference’s code of conduct does not apply to the Supreme Court — though the court has said it looks to the code for “guidance.” “Nobody wants to get on their bad side,” said Steven Lubet, a professor at Northwestern University School of Law. Congressional reluctance to pass laws regulating Supreme Court procedures is “unpersuasive,” he said. “I’m not saying there should be intrusion into their deliberations, but they should adopt a code of conduct. “There are a lot of laws Congress could pass” relating to the court, Lubet asserted — including laws requiring the court to explain recusals and list the votes on denials of certiorari. As it is now, said Lubet, without any transparency or explanation of the justices’ recusal decisions, “Only the former law clerks have inside information on why the justices recuse, and that’s not fair.” Former law clerks at the court say the justices have a broad range of methods for determining when to recuse. Some resemble a law office’s system for detecting client conflicts, but others appear far less formal. With an average of 12 recusals per term since joining the court in 1986, Scalia is outranked by several other justices, notably Justices Breyer and Sandra Day O’Connor. (The statistics in this article were drawn from a LexisNexis search of Supreme Court orders and opinions that tallied how many times each justice’s name appeared next to the words “took no part,” which is the court’s parlance for recusals. Most recusals come at the first step in the court’s review process, in cases where certiorari is denied.)

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