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

In Sierra Club v. Simkins Industries, Inc.,199 the trial judge had been a member of the Sierra Club from 1969 until 1971, when he was appointed to the bench.200 The lawsuit was begun in 1984.201 The Fourth Circuit found no appearance of impropriety because the judge's membership in the Sierra Club had been short and had ended long before the lawsuit began.202

In In re Mason,203 the trial judge, before being appointed to the bench, had made campaign contributions of $100 each to two defendants, who were elected officiais being sued only in their official capacities. The contributions were not in the distant past. One was in 1983 and the other in 1986. The judge was appointed in 1987, and the recusal issue arose in 1990. Citing Home Placement, In re United States, and Sierra Club, the Seventh Circuit held that "[c]ourts that have considered whether prejudicial political activity is also prejudicial regularly conclude that it is not. . . . In large measure, this is so out of necessity. . . . There are not enough political eunuchs on the federal bench to resolve all cases with political implications . . . ." That was written before Tucker, which is the closest of these cases to Justice Thomas' facts.

In the Senate, Justice Thomas was confirmed by the smallest margin in history-forty-eight senators against him and only fifty-two in favor.204 Al Gore, then a senator from Tennessee, voted nay.205 Justice Thomas displayed considerable bitterness at the time, describing his confirmation hearings as "a high-tech lynching."206 Little since then suggests that he has lost that bitterness entirely.207 Did it create an appearance of partiality against Gore-for Gore's opposition to Justice Thomas' confirmation-that would have required Justice Thomas to recuse himself under [sec] 455(a)? Two lines of cases might be relevant to this question.

In one line of cases, a lawyer for one of the parties had earlier either testified against a judge or defended the judge in a proceeding that had some characteristics of a disciplinary hearing. Because of the life tenure of Article III judges, these cases are exceedingly few in federal courts. But they all stand for the proposition that the judge in such a situation is disqualified.208 Gore, however, did not testify against Thomas. He was not a member of the Senate Judiciary Committee, did not participate in the confirmation hearings in any capacity, and did not take a leading role in opposing Thomas' nomination. He only voted against him on the Senate floor.

In the other line of cases, a lawyer for one of the parties either supported or opposed the judge in a prior election. Because federal judges are appointed and not elected, these are state cases, under a state version of the ABA Code. Unless the judge has done something to show bias, the lawyer's support or opposition is not considered disqualifying. "Where a lawyer voices his opposition to the election of a judge, it is assumed that the judge will not thereafter harbor prejudice against the lawyer."209 Although the rule might seem naive, any other rule would disqualify judges in large numbers of cases because of the frequency with which lawyers contribute to the campaigns of those running for judicial office. What might a judge do to show bias and overcome the presumption? One judge subjected a lawyer who opposed her to a "tirade."210 There have been no reports that Justice Thomas did anything concerning Al Gore that could overcome the presumption of a lack of bias.