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

If Justice O'Connor made the comments reported in the press-that she wanted to retire during a Republican presidency, that she was unhappy on election night that Gore appeared to be carrying Florida, and that she believed and was upset by the nursing home story-she was required by [sec] 455(a) to recuse herself because of an appearance of partiality. Those comments, if they were actually made, suggest prejudgment of key aspects of the lawsuit, a willingness to be influenced by factual assertions that were neither pleaded nor proved (and which one of the litigants was given no opportunity to rebut), as well as a personal preference-based on a hope for personal gain-about how the lawsuit should be resolved.

Under [sec] 455(a), it is the appearance of partiality that disqualifies. It is irrelevant whether the judge can in fact impartially decide the case.357 Aware of the comments attributed to Justice O'Connor, "an objective, disinterested, lay observer fully informed of the facts . . . would entertain a significant doubt about [her] impartiality."358 And, in fact, many of the journalists who reported these comments expressed exactly that doubt.359

C. IS A DESIRE TO RETIRE WHEN A REPUBLICAN PRESIDENT CAN NOMINATE A SUCCESSOR AN "INTEREST THAT COULD BE SUBSTANTIALLY AFFECTED BY THE OUTCOME OF THE PROCEEDING" UNDER SECTION 455(B)(4)?

Of course, no case has decided whether a desire to retire at a certain time for political reasons is an interest that would disqualify a judge under [sec][sec] 455(b)(4) and 455(b)(5)(iii). Before Bush v. Gore, no federal judge had decided, or attempted to decide, a lawsuit that would determine the next president. And, as we have seen, the goal of retiring when a certain political party is in office is, historically, an extremely recent phenomenon.360

Section 455(b)(4) requires disqualification in two situations. One is where the judge "has a financial interest in the subject matter in controversy." The other is where the judge has "any other interest that could be substantially affected by the outcome of the proceeding." An "interest that could be substantially affected by the outcome of the proceeding" therefore need not be financial.361

Among the nonfinancial cases interpreting those words-an "interest that could be substantially affected by the outcome of the proceeding"-none provide sufficient analogs to tell us whether the retirement intentions attributed to Justice O'Connor represent grounds for disqualification under [sec] 455(b)(4) and (b)(5)(iii). But let us explore a hypothetical that might help.

Assume that a trial judge is about to leave for a two-week vacation. There are no financial consequences because the judge will drive with family to a vacation home the judge owns. A party makes an emergency motion that can be denied immediately on the papers but granted only after a hearing, which will probably take three business days to conduct. The motion is made on Friday afternoon, and the hearing cannot begin until Monday. No other local federal trial judge or magistrate is available because they are all doing trials or are on vacation themselves. The family and the judge can travel only together (perhaps because the judge's spouse does not drive), which means that for all of them a large chunk of the vacation will disappear unless the motion is denied on the papers. This was to have been the first vacation this family would have had together in several years. Does the judge have an "interest that could be substantially affected by the outcome of the proceeding"? If the answer is yes for a vacation, it is yes for a politically timed retirement. If the answer is no, what would be the reason? If the answer is no because a vacation is not big enough to be an "interest" under the statute, it would be hard to say the same thing about a politically timed retirement-which is a way of influencing national law long after one has retired.