February 29, 2004

Of duck hunting and recusal

By: James N. Markels

Here’s a hypothetical for you: Say there’s a Supreme Court Justice that is about to hear a case where Organization X is a party. Organization X is a nonprofit group that the Justice formerly worked for, served as part of the group’s top leadership, and since getting on the bench has gone back as a celebrated guest to speak at the group’s rallies and functions. Federal law requires that “any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Should our hypothetical Justice disqualify him or herself?

Considering the recent outcry over Justice Antonin Scalia’s refusal to recuse himself in the pending case of Cheney v. U.S. District Court for the District of Columbia after it was revealed that he had gone duck hunting with a group including the Vice President soon after the Supreme Court had granted certiorari, one would think that the Justice in my hypothetical should clearly recuse him or herself from the case involving Organization X.

But my hypothetical was real, and the Justice chose against recusal. Justice Ruth Bader Ginsburg heard and ruled on Ashcroft v. American Civil Liberties Union, despite having served as the ACLU’s General Counsel and having been a member of its National Board of Directors before becoming a judge, and having spoken at several of the nonprofit’s events since. Just last year, in fact, Justice Ginsburg was the featured speaker at the ACLU’s their first-ever “Lobby Day” in opposition to the PATRIOT Act, which the ACLU described as part of “Attorney General John Ashcroft’s seemingly insatiable appetite for new law enforcement powers.” Hmmm…Ashcroft. Sound familiar?

Was Justice Ginsburg’s decision wrong? It would seem obvious that the level of involvement that Justice Ginsburg has had with the ACLU far exceeds the purported danger raised by Justice Scalia’s one duck hunt in the wilderness. So why the selective attention?

One of the problems is that whose impartiality might “reasonably be questioned” depends on who is doing the questioning. According to the editorial pages of a large number of newspapers across America, Justice Scalia’s impartiality seems to have been reasonably questioned. However, the call is for each Justice to make, not the media, or even the general public. Perhaps Justice Ginsburg felt there was no problem with impartiality in the Ashcroft case because, ultimately, she sided against the ACLU in joining the majority that held that the Child Online Protection Act was not unconstitutionally overbroad. However, Justice Ginsburg also did not recuse herself in the earlier case of Reno v. ACLU, where she joined with the majority to hold that part of the Communications Decency Act was overbroad, as the ACLU argued.

When it comes to social contacts, maybe, from a Justice’s point of view, the kinds of contacts that Justices Ginsburg and Scalia have are not seen to be reasonably suspect. It seems possible that when it comes to the Supreme Court, the issue of impartiality is somewhat different than with most other members of the judiciary because the Justices are traditionally a bit more connected in the political world than other judges.

The federal legal world is a small pond in which the Justices are the biggest fish. Either by virtue of their distinguished career before gaining the bench, or their prominence since being seated, every Justice has rubbed elbows with the people who are most affected by the Court’s business. Justices tend to have friends at the very highest levels of government and the legal profession because these are their natural peers. In the case of Bush v. Gore, for example, where the parties were represented by superstar lawyers David Boies and Ted Olsen, it’s hard to imagine any of the Justices not having had some social contact with at least one of the advocates.

Indeed, as Justice Scalia mentioned in defense of his decision not to recuse himself, the Justices are invited to dinner at the White House all the time. Does that mean they can’t hear cases involving the administration? That would be silly. It still makes sense for the Justices to recuse themselves in more obvious examples of impartiality, such as when a family member is involved in the case or where the Justice has taken a public position in the past that is now being raised in a case before the Court. But a social contact in D.C. may seem different to the Justices simply because they have so many of them.

Bernard Ries, a former administrative law judge, recently wrote in The Washington Post that Justice Scalia should recuse himself anyway because the Vice President, as a party to the case (even if only in an official capacity, and not personally), has a lot invested in winning, implying that it’s hard to believe that during the duck hunting trip there wasn’t some kind of ear-bending going on about the case. And to us, the little roe of the law pond, this seems pretty logical. But how do we square Justice Ginsburg’s decision not to recuse herself in cases where the ACLU was a similarly invested party? How does one duck hunt compare to eight years as an in-house counsel and board member?

It seems to me that the main difference is this: A duck hunting trip sounds like just the kind of smoke-filled-room, cigar-chomping, chortling-bad-guy activity that reeks of impropriety, while serving as a lawyer for a nonprofit is not. But that’s just a caricature. The appearance of justice would probably be better served if Justice Scalia stepped out of the Cheney case, but that would require a new standard from the one Justice Ginsburg has already followed.

James N. Markels is a law student at George Mason University.