10th January 2006

Important stuff you never knew

posted by saurabh in Uncategorized |

I’m always amazed at the crucial judicial verdicts handed down by people who should rightly have recused themselves. Previously we’ve complained about John Roberts and how he should have recused himself from Hamdan v. Rumsfeld when he found out he was in consideration for a Supreme Court appointment.

Today I was startled to find out an even earlier incident of a similar sort. Apparently, back in 2000, Sandra Day O’Connor was thinking to retire, but didn’t want to do so during a Democratic administration. A Georgetown Journal of Legal Ethics article describes her disgust when the election was initially called for Gore:

Sitting in her hostess’s den, staring at a small black-and-white television set, she visibly started when CBS anchor Dan Rather called Florida for Al Gore. “This is terrible,” she exclaimed. She explained to another partygoer that Gore’s reported victory in Florida meant that the election was “over,” since Gore had already carried two other swing states, Michigan and Illinois.

Moments later, with an air of obvious disgust, she rose to get a plate of food, leaving it to her husband to explain her somewhat uncharacteristic outburst. John O’Connor said his wife was upset because they wanted to retire to Arizona, and a Gore win meant they’d have to wait another four years. O’Connor, the former Republican majority leader of the Arizona State Senate and a 1981 Ronald Reagan appointee, did not want a Democrat to name her successor.

And yet, when the opportunity presented itself several weeks later to choose the fucking President of the United States, “Justice” O’Connor did not recuse herself. I quote United States Code, Title 28, Section 455, Disqualification of Justice, Judge, or Magistrate (found here):

(4) He [sic] knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

Astounding.


There are currently 12 responses to “Important stuff you never knew”

  1. 1 On January 11th, 2006, Anonymous said:

    I think that the assessment that O’Connor’s desire to retire constitutes a conflict of interest is wholly subjective. It’s a state of mind question, and the evidence regarding her state of mind is murky. Yes, it in unquestionable that the SCOTUS is partisan, of course, a GOP appointment would like a GOP successor. On the other hand, however, O’Connor didn’t announce her desire to retire until nearly 5 years after the 2000 election, showing that retiring wasn’t an immediate goal. Plus, my friends in the Capitol pointed out that she announced her retirement last year reluctantly, due to her husband’s poor health and her worsening case of Parkinson’s (she has had the shakes for some time). 

    Posted by echan

  2. 2 On January 12th, 2006, Anonymous said:

    that she waited isn’t conclusive evidence that the earlier motive (sourced by the WSJ to her husband) was falsely attributed or recorded. the conflict of interest issue was discussed at that point, in late december 2000, in at least one article .

    the election of a president means possibly 8 years of that administration, with the possibility of 12 or more if the veep gets elected afterward. not-now-but-soon feelings would come into play. 

    Posted by david

  3. 3 On January 12th, 2006, Anonymous said:

    Also, I could have quoted a different part of the federal judicial recusal statute, which says merely that the judge should recuse her/himself in a case “[w]here [the judge] has a personal bias or prejudice concerning a party”.

    The Georgetown law journal article I linked above (which is quite good on the subject, if you’re interested you should read it, though it’s quite long) says:

    “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. The test is “whether an objective, disinterested, lay observer fully informed of the facts . . . would entertain a significant doubt about a judge’s impartiality.” “It is enough that the average layperson would have doubts about any judge’s impartiality under [the] circumstances” that create a recusal issue. 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.” The policy behind [sec] 455(a) is “to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.”"

    And I think we can all agree that, at the very least, “the appearance of impropriety” is what we were left with after that verdict. 

    Posted by saurabh

  4. 4 On January 12th, 2006, Anonymous said:

    At what point will I stop being astounded? I mean, I sort of still don’t want to believe what is happening and has happened, and yet it clearly is and has. The Bush v. Gore decision is right there for all of us to read, including the part that says that it’s a one-time deal that’s not to be taken as a precedent.

    Two minor points: If O’Connor was not timing her decision but did it out of necessity as echan’s implying, she wouldn’t have waited for a successor to be appointed as she did when she made the announcement she was resigning. Also, david, there have only been one sitting vice-president elected to the presidency since Martin Van Buren.

    -s 

    Posted by someone else

  5. 5 On January 12th, 2006, Anonymous said:

    s: in re sitting veeps getting their props, you’re not counting al gore, which seems wrong in this discussion; and also not considering that in the radio/television/primary era there has been enormous death and destruction of sitting presidents, skewing all results. 

    Posted by david

  6. 6 On January 13th, 2006, echan said:

    The important part of the recusal test that you cite is the following:

    The test is “whether an objective, disinterested, lay observer fully informed of the facts . . . would entertain a significant doubt about a judge’s impartiality. ” “It is enough that the average layperson would have doubts about any judge’s impartiality under [the] circumstances” that create a recusal issue. 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.”

    The average layperson standard gives judges a lot of leeway to not recuse themselves. Justice O’Connor’s husbands comment is not sufficient, I believe to satisfy this standard. If so, someone on the left could have probably drummed up something against prehistoric, yet hearty, Stevens to force his recusal as well.

    As an aside (and separate from this argument), even if O’Connor recused herself from the Bush v. Gore case, Bush would have still prevailed. While sulking Dems like to believe that it was a 5-4 decision, it was really a 7-2 decision (Souter and Breyer agreed that the manual recounts violated the Equal Protection Clause). 

    Posted by echan

  7. 7 On January 13th, 2006, Anonymous said:

    david, your point about Gore is well taken (although if we’re going to count him as an elected sitting vice president, we might want to count Nixon in 1960 too ;)

    as for the other part–this is a really minor argument–my favorite kind :) –I don’t agree about your specific point, but I do agree that it’s more likely that a sitting vice president could win office today than 50 years ago.

    There were three presidents assassinated before 1960 and one afterwards. But if you count the many more who died of natural causes in office before completing their one or two terms before 1960, I think it’s weighted towards shorter lives before. See this list of term lengths at wikipedia . I think that sitting vice presidents getting elected now has more to do with other contemporary political trends–like a general consolidation of national government power, U.S. global supremacy, new advantages of incumbency, or possibly just the sheer corruption of our particular era (i.e. maybe there’s hope), etc. 

    Posted by someone else

  8. 8 On January 13th, 2006, Anonymous said:

    s: FDR died in office and inspired the term limit. truman wasn’t sitting. eisenhower, as you said. kennedy died. LBJ wasn’t sitting. nixon resigned. ford wasn’t sitting. carter, 1 term. reagan-bush, including the perot thing which further muddies water. clinton gets impeached but stays, then, this. so in the modern era, with term limits, giant wars, television, weak party structure, etc, etc: the data is totally screwed up. what’s the pattern?

    death rates before i think are immaterial. the point is, if you were trying to guess at that point how long it would be before a republican could let you retire, assuming 12 years wouldn’t have been unreasonable, because who the heck knows.

    echan: you’re confusing impeachment with recusal. husband’s comment indicated justice o’connor’s state of mind. justice o’connor was not deciding on recusal based on her husband’s interpretation of her feelings, but on her own position. if justice o’connor felt that way – strongly aligned politically (unquestionably true) with personal stake (the matter at hand) – then not walking away was hugely unethical. that we have to guess what she thought at the time is because she knew the law and gave no comment; that’s our problem; it doesn’t change her ethical position. 

    Posted by david

  9. 9 On January 13th, 2006, Anonymous said:

    echan, you should really just read the review I linked. It addresses the exact argument you made, and it says from a legal perspective, the “average layperson” is likely to view judges as much less impartial than they view themselves. I think this is true. 

    Posted by saurabh

  10. 10 On January 14th, 2006, echan said:

    On the point of O’Connor, that article did nothing to convince me. If the Supreme Court had voted the other way, the right wing media would have searched for similar statements from Stevens, and similar connections from the Democratic appointments. I think the “reasonable person” assessment is difficult to ascertain because everyone has a partisan leaning. Secondly, legal ethics, particularly with recusals have much more flexibility than the article’s author lets on, particularly when it is a subjective state of mind question.

    I do think, however, that a case can be made for recusals based on conflicts of interest due to family ties for Scalia, Thomas, and even Rehnquist (the article calls for his recusal based on the “retirement conflict,” but like Scalia and Thomas, he had a family conflict, his daughter Janet ). 

    Posted by echan

  11. 11 On January 14th, 2006, echan said:

    Actually, strike that last bit on Rehnquist. I didn’t realize that Janet was appointed in 2001 (clearly, the logic is that appoinments happen after the president takes office). Still though, that Janet Rehnquist was a Mike Brown type appointment.

    And aren’t we forgetting the real villian here? Katherine Harris? 

    Posted by echan

  12. 12 On January 16th, 2006, someone else said:

    Katherine Harris? Sexist though it may be, I would bet my house that she was a pawn. 

    Posted by someone else

Leave a Reply

  • Blogroll