Calls for recusals not necessary, experts say

©Los Angeles Times

© St. Petersburg Times, published December 13, 2000

WASHINGTON -- Supreme Court justices rarely recuse themselves, but some critics have questioned whether Justices Antonin Scalia and Clarence Thomas should have participated in a ruling on Bush vs. Gore because of the roles of family members.

Some experts on legal ethics, however, say that the situations involving Scalia and Thomas did not rise to a level that requires recusal.

Lanny J. Davis, a former attorney in the Clinton White House, and others called attention to the fact that Scalia's son Eugene is a Washington law partner of Theodore B. Olson, the lawyer who twice has argued before the Supreme Court on behalf of Texas Gov. George W. Bush. Another son, John Scalia, is a lawyer in the Miami firm that has represented Bush in Florida.

Thomas' wife, Virginia, is helping the Heritage Foundation, a conservative think tank here, collect applications from people seeking employment in a possible Bush administration.

Mary M. Cheh, a law professor at George Washington University, said federal law and rules of the American Bar Association require a judge to step aside from a case only when the judge or a close relative has "a direct interest that could be substantially affected" by it.

"Recusals are relatively rare occurrences," she said. "But you don't want to have justices that are too quick to step aside because you want to have a full complement on the court."

Cheh noted that Thomas once recused himself from hearing an appeal challenging the refusal of a Virginia military academy to admit women because his son was a student there.

"It's questionable whether that situation would have required Thomas' recusal, but I suppose he realized that it had a look about it," she said.

In many cases, simply the appearance of impropriety can be grounds for recusal, other experts said.

Davis, now a lawyer in private practice here, said that "because this case is so unique in its political impact, I believe Justice Scalia made a grave mistake in not disclosing to both sides that his two sons work for the only two law firms representing Gov. Bush."

Although flatly rejecting the need for Scalia to have recused himself, another ethics authority, Stephen Gillers of New York University Law School, said that Chief Justice William H. Rehnquist should have stepped aside earlier this year from considering the government's antitrust case against Microsoft Corp.

Rehnquist's son James is a Boston lawyer who is helping defend Microsoft in a private antitrust case that could be affected by the government's litigation, Gillers said. The Supreme Court voted against accepting an expedited review of a district judge's ruling against Microsoft.

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