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

At the time that Bush v. Gore was argued and decided in the Supreme Court, Eugene Scalia was a partner in Gibson Dunn & Crutcher, the firm that handled George Bush's appeal there. Theodore Olson-now Solicitor General of the United States but then a Gibson Dunn partner-was lead counsel for Bush in the Supreme Court. According to the Wall Street Journal,

Mr. Olson and other partners have argued many times before the high court, so the issue of how to handle Eugene Scalia's presence at the firm isn't new. To insulate the younger Mr. Scalia, the firm deducts from his income an amount that reflects its profits from Supreme Court cases.301

In May 2001, Eugene Scalia was nominated by President Bush to be Solicitor for the Department of Labor; after the Senate took no action on the nomination, Mr. Bush gave him a recess appointment in January 2002 to the same position.302

Many of the press reports published at the time of Bush v. Gore said that John Scalia worked at or was employed by Greenberg Traurig LLP, which represented the Bush campaign in the Florida courts-without specifying whether he was a partner or an associate. On December 12, CNN quoted a Greenberg Traurig partner as saying that John Scalia was offered the position weeks before the election, and that he would not join the firm until early in 2001. Greenberg Traurig's website includes a press release dated January 10, 2001, which says that "John Scalia has joined the firm's Tysons Corner [Virginia] office as a shareholder in the labor and employment law practice."303

In 1993, a recusal policy concerning relatives who are partners in firms appearing before the Supreme Court was signed by seven justices-all of the present Court except for Justice Souter, who did not sign, and Justice Breyer, who was not on the Court at the time and whose signature does not appear on the copy distributed by the Supreme Court clerk. Here are the relevant parts of that policy:

STATEMENT OF RECUSAL POLICY

We have spouses, children or other relatives within the degree of relationship covered by 28 U.S.C. [sec]455 who are or may become practicing attorneys. . . . We think it desirable to set forth what our recusal policy will be . . . when the covered lawyer is a partner in a firm appearing before us. . . .

The provision of the recusal statute that deals specifically with a relative's involvement as a lawyer in the case requires recusal only when the covered relative "[i]s acting as a lawyer in the proceeding." [sec]455(b)(5)(ii). It is well established that this provision requires personal participation in the representation, and not just membership in the representing firm, see, e.g., Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1113 (CA5), cert. denied, 449 U.S. 820 (1980). It is also apparent, from use of the present tense, that current participation as lawyer, and not merely past involvement in earlier stages of the litigation, is required.

A relative's partnership status, or participation in earlier stages of the litigation, is relevant, therefore, only under one of two less specific provisions of [sec]455, which require recusal when the judge knows that the relative has "an interest that could be substantially affected by the outcome of the proceeding," [sec]455(b)(5)(iii), or when for any reason the judge's impartiality "might reasonably be questioned," [sec]455(a). We think that a relative's partnership in the firm appearing before us, or his or her previous work as a lawyer on a case that later comes before us, does not automatically trigger these provisions. If that were the intent of the law, the per se "lawyer-related recusal" requirement of [sec]455(b)(5)(ii) would have expressed it. Per se recusal for a relative's membership in the partnership appearing here, or for a relative's work on the case below, would render the limitation of [sec]455(b)(5)(iii) to personal work, and to present representation, meaningless.