Debate swirls over Justice Scalia hearing a case that involves Cheney.
At the center of the dispute over Supreme Court Justice Antonin Scalia's controversial duck-hunting trip is a question only one person can answer.
The issue isn't whether the private hunting trip with Vice President Dick Cheney compromised the justice's ability to be fair and impartial in a case pending before the high court involving the vice president. No one is challenging Justice Scalia's honesty.
Instead, the question is broader. Did the trip create an appearance of judicial favoritism?
Congressional Democrats, a growing number of newspaper editorial writers, and several judicial-ethics experts say it has. They say the justice must recuse himself from hearing the vice president's case or risk tarnishing the Supreme Court's image and his own.
But the federal recusal law that governs such issues authorizes only one person to decide that question - Scalia himself. Specifically, the relevant law requires a judge or justice to disqualify himself from any case "in which his impartiality might reasonably be questioned."
"It is Justice Scalia himself deciding what a reasonable person would believe," says Richard E. Flamm, author of "Judicial Disqualification: Recusal and Disqualification of Judges." "What matters here is not what some appellate court believes, but what Justice Scalia believes is proper."
The 1974 recusal law is aimed at promoting public confidence in the judiciary in part by putting judges on notice that it isn't enough to act ethically, they must also be seen to be acting ethically. Appearances matter.
At the same time, Congress left it up to each Supreme Court justice to decide when or if recusal is appropriate. It is an important protection to guard the high court against those who might use recusal motions to eliminate a justice they fear will vote against them.