Seeing the Law Through Crude-Colored Glasses

As might be expected in such a politically charged situation, groups are charging that the district court judge who “struck down the Obama Administration’s six-month moratorium on new deep water drilling” had oil-related interests that could have influenced his decision. Now the WSJ Law Blog reports that the Alliance for Justice has prepared a report on the oil ties of two of the three judges on the appellate panel that will review the district court judge’s finding.

I imagine all these judges might point to the Scalia non-recusal in Cheney v. United States District Court to justify their own decisions to hear the case. Michael Dorf had an interesting perspective on that controversy, where the underlying litigation concerned a “2001 advisory committee on energy policy that Vice President Cheney headed.” Here are some lines from Justice Scalia’s memorandum refusing to recuse himself:

For five years or so, I have been going to Louisiana during the Court’s long December-January recess, to the duck-hunting camp of a friend whom I met through two hunting companions. . . Our friend and host, Wallace Carline . . . runs his own company that provides services and equipment rental to oil rigs in the Gulf of Mexico.

During my December 2002 visit, I learned that Mr. Carline was an admirer of Vice President Cheney. Knowing that the Vice President, with whom I am well acquainted (from our years serving together in the Ford administration), is an enthusiastic duck-hunter, I asked whether Mr. Carline would like to invite him to our next year’s hunt. The answer was yes. . . .

My recusal is required if . . . my “impartiality might reasonably be questioned.” 28 U. S. C. §455(a). Why would that result follow from my being in a sizable group of persons, in a hunting camp with the Vice President, where I never hunted with him in the same blind or had other opportunity for private conversation? The only possibility is that it would suggest I am a friend of his. But while friendship is a ground for recusal of a Justice where the personal fortune or the personal freedom of the friend is at issue, it has traditionally not been a ground for recusal where official action is at issue, no matter how important the official action was to the ambitions or the reputation of the Government officer.

For me, one key question is: how much of the judges’ net worth (and the professional prospects of themselves and their friends and family) are attributable to oil industry ties? What do they have to lose by spurning the claims of the industry? The Alliance for Justice may prove too much by detailing the oil industry ties of what appear to be a majority of the active judges on the Fifth Circuit; such business contacts may be a near-necessity for successful lawyers in the area.

Whatever happens, the stakes are high for oil companies, their workers, and the courts themselves. To quote Justice Scalia again: “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, and in an atmosphere where the press will be eager to find foot-faults.”

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