[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

Cheney and he never shared a duck blind, as it sadly turns out. Finally, lest you were
worried about the Vice President having a Clinton problem, we are told that, although
virtually everyone shared sleeping rooms, this sharing did not include the Vice President,
who was not forced to sleep with Justice Scalia, his son or his son-in-law.
I make light of Justice Scalia’s exegesis of the facts. I might even be accused of adopting
a Scalia-like tone. But the fact that Justice Scalia spends all this time arguing the facts is
really quite informative. Taking the time to share them with us, Justice Scalia must feel that
they are critical, if not dispositive to dismissing any allegations that he should recuse
himself. . . .
Why is Justice Scalia telling us all this? In my view, it demonstrates the weakness of his
position. Should any motion to recuse turn on the facts to which Justice Scalia so
tenaciously clings? The fact is Justice Scalia spent this huge amount of time with a litigant
with a present matter before the court. No amount of tap dancing about who introduced
who to whom, whether the host was an oil man or an oil rig man, or whether they were in
the same duck blind changes the substance of what occurred. Justice Scalia engaged in
conduct vis-à-vis the Vice President that required him to recuse himself. From the point of
view of the adverse litigants this situation is intolerable. And no argument about how
oblivious Justice Scalia was to the trappings of flying on Air Force Two with his son and
son-in-law can change that.
Justice Scalia knows this. He knows that his neutrality was compromised by his sojourn
with the Vice President, even if he didn’t have to worry whether the Vice President snores.
But his memorandum grabs on to one passing lifesaver. For sure if this case were personal
to Richard Cheney, he would recuse, Justice Scalia admits. But this case is a suit against
Mr. Cheney in his official capacity. And therefore Justice Scalia was certainly required, in
his humble opinion, to stay in the case.
It is true that different standards might apply in personal versus official capacity law
suits. The Social Security Administrator might well be indifferent to the fact that he or she
is sued hundreds of times a month. And the idea that a judge played golf with that
administrator while hearing some poor soul’s social security appeal might not raise serious
questions of judicial ethics. But to analogize such an unremarkable prosaic circumstance to
this lawsuit against this vice president is surely to exalt form above substance.
It is also certainly true, as Justice Scalia repeatedly observes, that the Vice President has
been sued in his official capacity. But the concept of official capacity- private capacity
cannot be an on-off switch for deciding when a justice must recuse himself. Some official
capacity lawsuits are far more personal than lawsuits that are classified as personal. Despite
Justice Scalia’s naked assertion to the contrary, this lawsuit raises an issue that has garnered
significant attention for years — the highly charged question of who was sitting down in
secret with the former CEO of Halliburton to decide our country’s energy policy. Who
were these oil industrialists? Oil men? Energy industry executives? It is an issue on which
the Vice President has literally staked his reputation, one that might even affect the Vice
President’s re-nomination or re-election. And to assert that the Vice President does not
have a deep, abiding and personal interest in whether he is going to be forced to share this
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