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

In 1969, the Senate rejected the nomination of Judge Clement Haynsworth of the Fourth Circuit for a seat on the Supreme Court because he had not recused himself in two cases where most Senators believed he had undisclosed conflicts of interest.29 The then-current ABA Canons of Judicial Ethics treated them as conflicts requiring recusal, even though the then-current version of [sec] 455 (quoted above) did not.30 The vast majority of federal judges observed the stricter Canons and recused themselves in similar situations,31 and it was seen by many as a failure of character for Judge Haynsworth not to have done so. Because of the differences between the Canons and the statute, and because of other controversies in 1969 and 1970 involving Supreme Court Justices Abe Fortas32 and William O. Douglas,33 many in Congress saw a need to rewrite the statute.34

Between 1969 and 1972, the ABA Model Code of Judicial Conduct was drafted by the ABA Special Committee on Standards of Judicial Conduct, and it was adopted by the ABA House of Delegates in 1972.35 Canon 3C of the Code-Canon 3E after revisions in 1990 and 1997(36)-set out a more comprehensive and thoughtful set of recusal rules than existed in the federal statutes of 1972.

In 1974, Congress enacted the current version of [sec] 455,37 which is now the primary federal judicial recusal statute.38 The revised [sec]455 was derived from, but is not identical to, the ABA Code.39 B. 28 U.S.C. [sec] 455

Section 455 uses the word "disqualification" rather than "recusal." The case law uses the terras interchangeably, and they mean the same thing.

The statute divides grounds for recusal into those based on appearances ([sec] 455(a)) and those based on facts that are automatically disqualifying ([sec] 455(b)). Subsection 455(a) requires a federal judge to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Under [sec] 455(a), the appearance of partiality disqualifies even if in fact the judge is fully capable of impartially judging the case.40 The test is "whether an objective, disinterested, lay observer fully informed of the facts . . . would entertain a significant doubt about a judge's impartiality."41 "It is enough that the average layperson would have doubts about any judge's impartiality under [the] circumstances" that create a recusal issue.42 When appearances are at issue, a judge "ought to consider how his participation . . . looks to the average person in the street. Use of the word 'might' in the statute was intended to indicate that disqualification should follow if the reasonable man, were he to know all the circumstances, would harbor doubts about the judge's impartiality."43 The policy behind [sec] 455(a) is "to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible."44

How would judges know what the average person in the street would think? Empirical studies, such as survey research, are not part of the answer. Nobody budgets for them, and if people in the street told us what they think about a certain judge's participation in a certain case, the result could upset our preconceptions. "Judges must imagine how a reasonable, well-informed observer of the judicial system would react,"45 and what courts imagine about this hypothetical person may surprise the public that the hypothetical person is supposed to exemplify. "Judges asked to recuse themselves hesitate to impugn their own standards[, and] judges sitting in review of others do not like to cast aspersions."46 To do a [sec] 455(a) analysis properly, a court must remember that "these outside observers"the hypothetical people in the street whose opinions are controlling-"are less inclined to credit judge's impartiality and mental discipline than the judiciary itself will be."47