WASHINGTON, Feb. 24 (UPI) -- A group trying to force Vice President Dick Cheney to release records of the National Energy Policy Development Group has filed a motion asking Supreme Court Justice Antonin Scalia to withdraw from the case.
Scalia went on a duck-hunting trip with Cheney barely a month after the Supreme Court agreed to hear the dispute.
The justice, who does not answer media questions directly from chambers, has told an audience in an outside speech that he would not step down. Chief Justice William Rehnquist also has rejected suggestions from two members of Congress, Sen. Patrick Leahy, D-Vt., and Sen. Joe Lieberman, D-Conn., that Scalia step aside.
Rehnquist called their suggestions "ill-conceived."
The "motion for recusal" was lodged at the Supreme Court after hours Monday and was formally acknowledged by the court clerk's office Tuesday.
The form of the request was highly unusual. Instead of filing a "suggestion for recusal" directly to Scalia -- which the justice could accept or reject on his own -- a lawyer for the Sierra Club, Public Citizen's Alan Morrison, filed a motion for recusal to the entire court. Now, the nine justices will be required to vote on the request behind closed doors.
The justices are not expected to grant the motion for recusal.
In the motion, Morrison sought to use Scalia's own words to argue that the justice should withdraw.
Citing Scalia's opinion in 1994's Liteky vs. United States, Morrison told the high court that "what matters is not the reality of bias or prejudice but its appearance" when deciding on a judge's conflict of interest. "Quite simply and quite universally, recusal was required whenever 'impartiality might reasonably be questioned.'"
Morrison said that the integrity of the judicial system is damaged when impartiality is at issue.
"Sierra Club makes this motion because that damage is being done right now," the motion said. "As of today, eight of the 10 largest newspapers with the largest circulation in the United States, 14 of the largest 20 and 20 of the 30 largest have called on Justice Scalia to step aside because his vacation with the vice president (including transportation on Air Force Two, courtesy of the vice president) has created an appearance of impropriety in this case ... (and) not a single newspaper has argued against recusal."
The motion said the facts satisfy the requirements of federal law, "which mandates recusal merely when a justice's impartiality 'might reasonably be questioned.'"
The motion also cites a case in which Arkansas Gov. Jim Guy Tucker was prosecuted. "At the request of independent counsel Kenneth Starr, the court of appeals held that the trial judge should be recused under (federal law) because the judge and the defendant both happened to be friends of then-President (Bill) Clinton and Mrs. (Hillary) Clinton ... even though neither President Clinton or Mrs. Clinton were parties in the case ... "
Morrison rejected Scalia's public defense that the trip with Cheney was typical Washington social contact, saying the vice president's own conduct is at issue in the energy board case.
Argument in the Cheney case is expected in April.
Cheney is asking the Supreme Court to help keep meetings of the National Energy Policy Development Group secret, in spite of lower-court rulings.
The Sierra Club and Judicial Watch, a legal public interest group, allege Cheney allowed private energy lobbyists and big-name campaign contributors to participate in the work of the group, and insist that the records be made public.
For legal purposes, Cheney's arguments against disclosure are the same as if he were the president, not vice president.
The dispute goes back to 2001, when President George W. Bush established the policy group as one of the first acts of his administration.
Bush's executive order said the group was to be chaired by the vice president and made up of a number of Cabinet secretaries and other public officials.
Cheney's policy group issued a public report in May 2001, and the report eventually evolved into the administration's proposed energy bill. The report also contained a purported list of those who participated in the policy group meetings. In accordance with Bush's instructions, the listed participants were all members of the federal government.
The General Accounting Office, the investigative arm of Congress, tried to make the records of the policy group public, but dropped the attempt when its initial legal action failed.
Stepping into the gap, the Washington-based Judicial Watch continued its own suit in federal court against the policy group, its members and several private individuals, alleging that the defendants had failed to comply with the Federal Advisory Committee Act.
FACA compels the public disclosure of all advisory committee reports, records and documents. FACA does not apply to those groups composed solely of "federal officials."
But Judicial Watch contended that in addition to members of the federal government, a number private individuals -- such as former Enron President and Chairman Kenneth Lay and GOP figures Haley Barbour and Marc Racicot, acting as energy lobbyists -- "regularly attended and fully participated" in the group's meetings held behind closed doors, and were in fact members of the group.
Before proceedings started in federal court in Washington, the Sierra Club filed a nearly identical suit, and the cases were combined.
Though the combined suit has not yet come to trial, a federal judge has ruled against Cheney and the national policy group. The policy group must produce its documents to the plaintiffs as part of "discovery," the judge said, before a trial could begin.
A federal appeals court panel, by a vote of 2-1, upheld the ruling, noting that the White House was not claiming "executive privilege." The split panel also rejected an attempt by Cheney to dismiss his name from the case, saying it did not have jurisdiction over that particular matter until a final ruling by the lower court.
In a petition filed by the Justice Department on behalf of Cheney and the group, U.S. Solicitor General Theodore Olson told the Supreme Court that the combined cases "present fundamental separation-of-powers questions arising from the (judge's) orders compelling the vice president and others to comply with broad discovery requests by private parties seeking information about the process by which the president received advice on important national policy matters from his closest advisers."
Olson said the lower court's orders "would subject the president to intrusive and distracting discovery every time he seeks advice from his closest advisers. They would open the way for judicial supervision of the internal executive branch deliberations."
Judicial Watch has said it does not intend to ask for Scalia's withdrawal.
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(No. 03-475, Cheney et al vs. U.S. District Court.)
