Calls for Recusal of Thomas, Scalia Are Undue, Experts Say

Supreme Court justices rarely recuse themselves, but some critics have questioned whether Justices Antonin Scalia and Clarence Thomas should have participated in a ruling on Bush vs. Gore because of the roles of family members.

Some experts on legal ethics, however, say that the situations involving Scalia and Thomas did not rise to a level that requires recusal.

Lanny J. Davis, a former attorney in the Clinton White House, and others called attention to the fact that Scalia’s son Eugene is a Washington law partner of Theodore B. Olson, the attorney who twice has argued before the Supreme Court on behalf of Texas Gov. George W. Bush. Another son, John Scalia, is an attorney in the Miami firm that has represented Bush in Florida.

Thomas’ wife, Virginia, is helping the Heritage Foundation, a conservative think tank here, collect applications from people seeking employment in a possible Bush administration.

Recusals Are Rare and Should Be, Expert Says

Mary M. Cheh, a law professor at George Washington University, said federal law and rules of the American Bar Assn. require a judge to step aside from a case only when the judge or a close relative has “a direct interest that could be substantially affected” by it.

“Recusals are relatively rare occurrences,” she said. “But you don’t want to have justices that are too quick to step aside because you want to have a full complement on the court.”

Cheh noted that Thomas once recused himself from hearing an appeal challenging the refusal of a Virginia military academy to admit women because his son was a student there.

“It’s questionable whether that situation would have required Thomas’ recusal, but I suppose he realized that it had a look about it,” she said.

In many cases, simply the appearance of impropriety can be grounds for recusal, other experts said.

Davis, now a lawyer in private practice here, said that “because this case is so unique in its political impact, I believe Justice Scalia made a grave mistake in not disclosing to both sides that his two sons work for the only two law firms representing Gov. Bush.”

Although flatly rejecting the need for Scalia to have recused himself, another ethics authority, Stephen Gillers of New York University Law School, said that Chief Justice William H. Rehnquist should have stepped aside earlier this year from considering the government’s antitrust case against Microsoft Corp.

Rehnquist’s son James is a Boston lawyer who is helping defend Microsoft in a private antitrust case that could be affected by the government’s litigation, Gillers said. The high court voted against accepting an expedited review of a district judge’s ruling against Microsoft.

A Rare Explanation From Rehnquist

Although Rehnquist acknowledged that his son’s case could have been affected, the chief justice said in a rare public explanation that the court’s action could not have benefited his son monetarily because James Rehnquist’s hourly pay was not linked to the success or failure of the Massachusetts case.

“When justices recuse themselves, they don’t have to give reasons and most often do not,” Gillers said. But the law professor contended that the chief justice’s son could have benefited professionally, even though not financially.

The most common recusals are when a case could affect a justice’s personal investments or the professional lives of a child or close relative, Gillers said. But Scalia should “absolutely not” have recused himself from Bush vs. Gore, he said.

“For a recusal to be called for, a son of Scalia would have to be a member of the legal team arguing the case. But he’s not involved in that case even though he’s a member of the law firm,” he added.

Larry Klayman, chairman and chief counsel of Judicial Watch, a conservative legal foundation based in Washington, said Section 455 of the federal criminal code states that “any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned” and that he should also disqualify himself if a person close to him “is acting as a lawyer in the proceeding” or has “an interest that could be substantially affected by the outcome of the proceeding.”

Rehnquist Bowed Out of Nixon Cases

Ethics authorities noted that Rehnquist, when he was a newly appointed associate justice in the 1970s, recused himself for the sake of appearance in several Richard Nixon administration cases. Rehnquist had been a high-level Justice Department official during Nixon’s first term.

His most famous recusal came when the Supreme Court was asked by the Watergate special prosecutor in 1974 to enforce a subpoena for Nixon’s secret Watergate tape-recordings.

With Rehnquist stepping aside, the court voted, 8 to 0, to enforce the subpoena. Nixon subsequently relinquished the tapes, which contained evidence of criminality that led to the president’s resignation.