Conflicts of interest in Bush v. Gore: Did some justices vote illegally?

A poorly decided case-perhaps the most poorly decided case discussed in this article-was In re Drexel Burnham Lambert, Inc., where the judge's wife owned part of a family business that was being sold to another company. The wife's share of the sales proceeds would be $30 million. Because the sale was leveraged, it was conditioned on the buyer's obtaining financing on "terms reasonably satisfactory to the buyer."175 The buyer contracted separately with Drexel to obtain financing. Neither the judge's wife nor the family business had any contractual relationship with Drexel, which was at the same time the defendant in fraud actions being litigated before the judge. The Second Circuit misinterpreted Liljeberg v. Health Services Acquisition Corp.176 to mean that a judge is disqualified under [sec] 455(a) only where the conflicting interest represents "a direct stake in the outcome of the litigation over which he was presiding."177 The correct test is "whether an objective, disinterested, lay observer fully informed of the facts . . . would entertain a significant doubt about a judge's impartiality,"178 and that is the test the Supreme Court enforced in Liljeberg.179 The word "direct" appears nowhere in Liljeberg, and none of its synonyms were used by the Supreme Court to qualify its formulations there of the [sec] 455(a) test.

The Second Circuit reasoned that since the buyer of the business rather than the judge's wife had a contract with Drexel, and since Drexel's financing would be delivered to the buyer rather than to the judge's wife, the situation did not create an appearance of impropriety.180 But that type of reasoning resolves a potential [sec] 455(b) conflict-of-interest issue-not a [sec] 455(a) appearance-ofpartiality issue. It provoked a passionate dissent from Judge Lumbard, who invoked the correct [sec] 455(a) test:

[T]he inescapable relevant fact is that Drexel has been, and is now, retained by the firm that is under contract with Mrs. Pollack [the judge's wife] and members of her family to arrange financing for the cash purchase of ... their family business, from which members of the family will receive over $84 million and Mrs. Pollack herself, and as trustee, will receive $30 million in cash. It is clear to me that a reasonable person knowing these ultimately conceded facts would reasonably question Judge Pollack's ability to supervise such litigation impartially. Such a reasonable person's next question would be "Why hasn't the judge stepped aside?" Moreover, Judge Pollack's expressed resentment to the suggestion of recusal and his castigation of Drexel and its counsel has confirmed these doubts.181

Would the law's disinterested lay observer, informed of the press reports about Virginia Thomas, doubt that Justice Thomas could decide Bush v. Gore impartially? Even if one's intuitive sense is that the answer should be yes, the case law shows that it is actually no. Mrs. Thomas had a relationship no closer to-and in some ways more distant from-the Bush campaign than the one of Hewlett-Packard's 83,000 employees who happened to be a trial judge's son. And, with one exception, nothing reported in the press approximates the type of facts that were disqualifying in Kelly and Faulkner. The exception is the Wall Street Journal's report that, while employed by a member of the Republican house leadership, "Ms. Thomas spearheaded a leadership effort to gather embarrassing information about the Clinton-Gore administration."182 If that means that she spent a significant amount of time trying to find ways of defaming Al Gore, the analysis here might be different. But the Journal's words could also mean that she did nothing more than investigate whether the executive branch during the Clinton administration was, in various ways, following the law, and that little or none of that involved Gore.