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;