Clashing Opinions on Justices’ Recusals

WASHINGTON —  In the spring of 1989, Supreme Court Justice Byron White, once a star running back for the Detroit Lions, was the guest of the Detroit News at the annual press dinner of the Gridiron Club. When the paper’s publisher bought him a drink, White casually asked how the planned merger of the city’s two newspapers was going.

“It’s before your court,” the publisher informed White.

A few weeks later, the justices voted to take up the case -- but without White. He had withdrawn from the deliberations, apparently concerned that his having just been the unwitting guest of a party to a case before the court might create an appearance of partiality.

Around that same time, Chief Justice William H. Rehnquist and Justice Antonin Scalia got together once a month to play poker. Sometimes, they were joined by the Reagan administration’s solicitor general, Charles Fried, the government’s top lawyer before the high court. That same spring, Fried strongly urged the court to overturn the Roe vs. Wade ruling that legalized abortion. Fried’s poker partners participated fully in the case.

“I was an occasional player. It was very small stakes,” Fried, a Harvard law professor, said last week. “The work of the court was not discussed.”

As the two incidents show, and as the current controversies over the outside activities of Scalia and Justice Ruth Bader Ginsburg underscore, the Supreme Court justices have quite different views on how they should manage their social and professional lives so as to avoid creating an appearance of partiality.

Some, like the late White and Justice John Paul Stevens, have been especially wary of appearing as though they favored one side or the other in a legal dispute.

Last spring, for example, Stevens debated dropping out of the pending case on affirmative action because one of his former clerks, Jeffrey Lehman, was the dean of the University of Michigan law school.

A white student’s challenge to the school’s admissions policy became the test case for the national dispute. The other eight justices “unanimously and very firmly” insisted he should stay in the case, Stevens told lawyers at a Chicago bar meeting last summer.

Stevens, a registered Republican at the time of his appointment, has been careful to separate himself from partisan and ideological causes and maintained a reputation for independence and impartiality. When his colleagues intervened in the 2000 Florida election dispute to stop the recount and thereby ensure that Republican George W. Bush would win the White House, Stevens worried in dissent that the ultimate loser would be the court’s standing as “an impartial guardian of the rule of law.”

But others reject what they see as a hyper-sensitivity over potential conflicts of interests. They stress that justices have friends who are lawyers and government officials, and insist that those friendships do not prevent a justice from deciding legal questions fairly.

Harvard’s Fried dismissed the concerns over Justice Scalia’s duck hunting trip with Vice President Dick Cheney as “utter garbage. It is contemptible, election-year garbage,” he said.

“Steve Breyer is one of my best friends, and he votes against me every time I appear in court. Washington is a town of government people, and it is stupid to say that if they sit together at dinner, it raises some sort of conflict.”

The justices are quick to say that they always prefer not to have to withdraw from a pending case simply to maintain the appearance of impartiality.

Stevens’ decision not to step aside in the affirmative action case proved crucial to the outcome. The Michigan policy prevailed on a 5-4 vote, with Stevens in the majority.

White’s recusal in the Detroit newspapers case proved crucial, too -- and it carried an ironic twist. The justices split 4-4 in the case, which cleared the way for the newspaper merger to go forward.

White had been a strong defender of the antitrust laws and a likely ally of those who were challenging the merger. “The effect of his recusal was that we lost,” said William Schultz, a Washington lawyer who represented the union employees.

As Scalia and Ginsburg have said recently, the justices frown upon recusals because of the likelihood it will create an evenly divided court. “There is no one to replace us,” Ginsburg said in response to questions about her involvement with the NOW Legal Defense Fund.

Experts in legal ethics say the better way to maintain impartiality -- and its appearance -- is to avoid the conflicts in the first place.

“First and foremost, you should avoid putting yourself in situations where you need to consider disqualification,” said retired Los Angeles Judge David Rothman, the author of California’s handbook on judicial ethics.

“The job of a judge or justice is to honestly decide extraordinarily important cases that come before the court. The job description does not include giving speeches and taking trips with those who have business before the court.”

“Good judicial ethics is often just good judgment and common sense,” said Chicago attorney Robert P. Cummins, who formerly headed the Illinois Board of Judicial Inquiry. “A judge ought to avoid participating in activities that in the minds of a reasonable person would create the perception that the judge would be influenced in favor of that organization or that person.”

He said Scalia’s hunting trip with Cheney and Ginsburg’s loaning her name and presence to an annual lecture co-sponsored by the NOW Legal Defense “create an appearance problem,” Cummins said. “I don’t see how they got involved in those things. It may be there is an attitude of elitism on that court.”

Unlike the justices of the Supreme Court, judges elsewhere in the nation need not rely on their good judgment alone in deciding what behavior might appear impartial.

All 50 states have a code of conduct for judges and a state board that oversees their actions. These boards regularly publish advisory opinions to guide judges when potential ethical problems arise.

For example, “A judge should not participate in the activities of any organization which is or may be involved in litigation before the court,” the California board said in one advisory opinion. “Likewise, judges should not participate in the activities of organizations which publicly promote highly controversial positions.”

If a judge is uncertain, these state boards have experts who answer questions and give advice.

Like their state counterparts, federal judges on the trial courts and appellate courts operate under a code of conduct. However, the justices have refused to adopt the code and have said it is not binding on them.

“It makes absolutely no sense to me that the Supreme Court is exempted from the code of judicial conduct,” said Doug Kendall, executive director of the Community Rights Counsel, a Washington-based group that monitors the behavior of judges.

Besides the codes and guidelines, state and federal judges can be rebuked if their impartiality comes under challenge. On occasion, the judge is the last person to realize his fairness might be in doubt.

In 1995, after the deadly bombing that destroyed the federal building in Oklahoma City, the federal judge whose courthouse was next door -- and who knew victims of the attack -- fought to stay on the case of Timothy J. McVeigh, the accused bomber, even after the trial was moved to Denver.

Eventually, the U.S. court of appeals in Denver ruled he must step aside. “A reasonable person could not help but harbor doubts about the impartiality of Judge [Wayne] Alley,” the appellate court said.

But the Supreme Court has continued to insist that the individual justices decide for themselves whether their impartiality “might reasonably be questioned.”

“They’re in a unique situation. When a justice’s impartiality is called into question, the decision on what to do is assigned to the justice whose judgment has been cast into doubt. And there’s no review, no appeal,” said Northwestern University law professor Steven Lubet.

That process was on display last week.

After learning from The Times about Scalia’s duck-hunting trip with Cheney, lawyers for the Sierra Club filed a motion with the court urging that the Scalia withdraw from the pending case of Richard B. Cheney vs. U.S. District Court.

But the full court referred the motion to Justice Scalia. And he, in turn, found no problem with his actions. “Since I do not believe my impartiality can reasonably be questioned, I do not think it would be proper for me to recuse,” he announced Thursday.

Professor Lubet says the high court has interpreted a federal disqualification statute adopted in 1974 in a way that renders it meaningless. “The whole purpose of the statute was to set rules and not leave it to the discretion of individual justices. But they are interpreting it as though it leaves all of the discretion to the individual justice,” he said.

The new law grew out of an incident in 1972 involving newly named Justice Rehnquist. As a Justice Department lawyer in the Nixon administration, he had defended on Capitol Hill the Army’s policy of spying on civilians and Vietnam War protesters. But civil rights lawyers challenged the spying as an unconstitutional infringement on peaceful protests. By the time that case reached the Supreme Court, Rehnquist had assumed his place as the ninth justice. Rehnquist refused to recuse himself, and he cast the deciding vote in a 5-4 decision that killed the lawsuit.

Two years later, Congress expanded the law governing judicial disqualification to include the Supreme Court. It states that any judge or justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

Prior to 1974, justices often socialized with the president and his top advisors. As Scalia pointed out in his memo Thursday, Justices Robert H. Jackson and William O. Douglas played poker on the second floor of the White House with President Franklin D. Roosevelt. In 1963, Justice White went skiing in Colorado with Atty. Gen. Robert F. Kennedy, even though the high court was about to hear two cases in which Kennedy was named.

“I see nothing wrong about Justice White’s and Justice Jackson’s socializing -- including vacationing and accepting rides -- with their friends,” Scalia wrote.

But experts who track the ethics standards point out that these cozy relationships between justices and presidents came before the 1974 law. In the decades since then, the court has increasingly become the place where some of the nation’s most contentious social and cultural disputes are decided.

“The justices have a special and unique responsibility in our society,” Cummins said. “And sometimes, that means they have may to give up a certain number of the rights and privileges of other citizens.”