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

Typical of one extreme is a case where a reporter telephoned a trial judge to ask about how a defendant would be resentenced after the initial sentence was reversed on appeal. The judge answered the reporter's question-although he should have refused to speak with the reporter at all337-and he was quoted in a newspaper as saying that he "didn't know if he could increase Fortier's sentenc[e] beyond 51 months. 'We haven't sat down and re-evaluated the guidelines yet in view of the [appellate] opinion. I suppose I could do a lot of things. I guess I don't know. . . . That's a matter I haven't researched yet.'"338 The Tenth Circuit considered these comments "benign" because "they express no opinion, indicate no animus towards Fortier, and demonstrate only that the judge was uncertain of his decision."339 In contrast, the comments attributed to Justice O'Connor express strong opinions about the subject of the lawsuit-which candidate she would prefer to have carried Florida-and they suggest that she believes a story-the nursing home fable-that would be damaging to Gore but was neither alleged nor proved in the record. In other words, the comments attributed to Justice O'Connor do express an opinion and do indicate an animus.

At the other extreme is an easy case for disqualification. Sitting next to a hotel swimming pool during a bar association meeting, a trial judge said "that he was going to preside at appellant's trial and 'that he was going to get that nigger.'"340 Because the defendant was indicted before the current version of [sec] 455 was enacted in 1974, his appeal was decided under the older statute. The Fifth Circuit analyzed the comment in terms reflecting the concepts now in [sec] 455(b)(1) and reversed. The comments attributed to Justice O'Connor, however, hardly approach this one. The comments attributed to her may reflect an animus, but they do not reflect a cold-blooded intent to rig a proceeding.

Between these two extremes, we do not really know where the line demarking "a personal bias or prejudice" is located. With so few precedents for guidance, a court asked to decide whether the comments attributed to Justice O'Connor reflect enough of an animus to violate [sec] 455(b)(1) in the absence of a recusal would likely avoid the issue if it could instead make the easier decision of whether they create an appearance of partiality under [sec] 455(a).

B. JUSTICE O'CONNOR'S REPORTED COMMENTS AND [sec] 455(A)

Would the law's disinterested lay observer, informed of the reports quoted above about Justice O'Connor, doubt that she could decide Bush v. Gore impartially? The issue is not whether she would decide impartially, but whether a disinterested lay observer would doubt her impartiality.

Where a plaintiff claimed to have been discriminated against on the basis of sex in Postal Service employment, the trial judge said during a pretrial hearing, "I know Mr. Graves and he is an honorable man and I know he would never intentionally discriminate against anybody."341 Mr. Graves was the plaintiff's supervising postmaster and made some of the personnel decisions that the plaintiff claimed to be discriminatory.342 The Sixth Circuit disqualified the judge on the ground that this comment suggested prejudgment of parts of the lawsuit, creating an appearance of partiality under [sec] 405(a). "We intimate no opinion regarding the actual impartiality of the District Judge," the court added. "Instead, it is the appearance of impartiality with which we are concerned."343