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

Other periodicals reported that Justice Scalia has the ambition of replacing William Rehnquist as Chief Justice.259

Although there is an element of speculation in some of this reporting, the core of it is based on specific comments that Justice Scalia is claimed to have made to "associates" and "friends" close enough in time to Bush v. Gore to suggest motivation that could constitute a conflict in interest.260 It is thus distinguishable from the published reports concerning Chief Justice Rehnquist, which were nearly entirely speculative when they attributed to him an intent to retire as soon as a Republican became president.261

In Pepsico v. McMillan,262 a district court judge decided to explore the possibility of leaving the bench and returning to the practice of law. He asked a headhunter to contact several local firms and inquire whether they would be interested in taking on, as a partner, a federal judge who might soon resign. Even though not named by the headhunter, the identity of the judge would inevitably be apparent, given the make-up of the local federal bench. The judge asked the headhunter not to contact firms then litigating cases before him, but because of a misunderstanding, the headhunter called two such firms, who were on opposing sides of the same case. Both firms told the headhunter they were not interested. The judge then agreed to become a partner at a third firm. Before resigning, though, he began the trial of the case in which the first and second firms opposed each other. One of the firms petitioned the Seventh Circuit for a writ of mandamus disqualifying the judge.

The Seventh Circuit granted the writ and ordered the judge to recuse himself, even though it described him as a person of "unblemished honor and sterling character"263 who "committed no impropriety."264 In an opinion by Judge Posner, the court held that there was no actual bias or prejudice under [sec] 455(b)(1) because the headhunter contacted both firms by mistake, both declined interest, and if the judge "feels any disappointment," it "presumably is with both firms."265 But there was a reasonable basis for doubting the impartiality of the trial judge in part because the firms' declinations of interest were "asymmetrical": one firm said no, and the other might have said no "at this time" (recollections differed).266 "An objective observer might wonder whether [the judge] might not at some unconscious level favor the firm . . . that had not as definitively rejected him."267 But even if the firms had declined with perfect symmetry, the court would still have disqualified the judge because the headhunter's inquiries-though "accidental"-put the judge in the position of appearing to negotiate for employment with those appearing before him.268 "The dignity and independence of the judiciary are diminished when the judge comes before the lawyers in the case in the role of a supplicant for employment. The public cannot be confident that a case tried under these circumstances will be decided in accordance with the highest traditions of the judiciary."269