‘Since I Believe There Is No Basis for Recusal, I Cannot’

Following are excerpts from Justice Antonin Scalia’s decision to remain in a pending case about Vice President Dick Cheney’s energy policy task force.

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“Recusal would in my judgment harm the court. If I were to withdraw from this case, it would be because some of the press has argued that the vice president would suffer political damage if he should lose this appeal.... But since political damage often comes from the government’s losing official-action suits; and since political damage can readily be characterized as a stain on reputation and integrity; recusing in the face of such charges would give elements of the press a veto over participation of any justices who had social contacts with, or were even known to be friends of, a named official. That is intolerable. My recusal would also encourage so-called investigative journalists to suggest improprieties, and demand recusals, for other inappropriate (and increasingly silly) reasons.�

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“While the political branches can perhaps survive the constant baseless allegations of impropriety that have become the staple of Washington reportage, this court cannot. The people must have confidence in the integrity of the justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor.�

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“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. 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.�

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“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....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) to a Dec. 11, 2003, Christmas reception at the residence of the vice president. Several of the justices attended, and in doing so they were fully in accord with the proprieties.�

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To read the full text of Scalia’s memorandum, go to latimes.com/scalia.