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Clashing Opinions on Justices' Recusals

Supreme Court jurists have different views on how they define a conflict of interest.

March 21, 2004|David G. Savage and Richard A. Serrano | Times Staff Writers

WASHINGTON — In the spring of 1989, Supreme Court Justice Byron White, once a star running back for the Detroit Lions, was the guest of the Detroit News at the annual press dinner of the Gridiron Club. When the paper's publisher bought him a drink, White casually asked how the planned merger of the city's two newspapers was going.

"It's before your court," the publisher informed White.

A few weeks later, the justices voted to take up the case -- but without White. He had withdrawn from the deliberations, apparently concerned that his having just been the unwitting guest of a party to a case before the court might create an appearance of partiality.

Around that same time, Chief Justice William H. Rehnquist and Justice Antonin Scalia got together once a month to play poker. Sometimes, they were joined by the Reagan administration's solicitor general, Charles Fried, the government's top lawyer before the high court. That same spring, Fried strongly urged the court to overturn the Roe vs. Wade ruling that legalized abortion. Fried's poker partners participated fully in the case.

"I was an occasional player. It was very small stakes," Fried, a Harvard law professor, said last week. "The work of the court was not discussed."

As the two incidents show, and as the current controversies over the outside activities of Scalia and Justice Ruth Bader Ginsburg underscore, the Supreme Court justices have quite different views on how they should manage their social and professional lives so as to avoid creating an appearance of partiality.

Some, like the late White and Justice John Paul Stevens, have been especially wary of appearing as though they favored one side or the other in a legal dispute.

Last spring, for example, Stevens debated dropping out of the pending case on affirmative action because one of his former clerks, Jeffrey Lehman, was the dean of the University of Michigan law school.

A white student's challenge to the school's admissions policy became the test case for the national dispute. The other eight justices "unanimously and very firmly" insisted he should stay in the case, Stevens told lawyers at a Chicago bar meeting last summer.

Stevens, a registered Republican at the time of his appointment, has been careful to separate himself from partisan and ideological causes and maintained a reputation for independence and impartiality. When his colleagues intervened in the 2000 Florida election dispute to stop the recount and thereby ensure that Republican George W. Bush would win the White House, Stevens worried in dissent that the ultimate loser would be the court's standing as "an impartial guardian of the rule of law."

But others reject what they see as a hyper-sensitivity over potential conflicts of interests. They stress that justices have friends who are lawyers and government officials, and insist that those friendships do not prevent a justice from deciding legal questions fairly.

Harvard's Fried dismissed the concerns over Justice Scalia's duck hunting trip with Vice President Dick Cheney as "utter garbage. It is contemptible, election-year garbage," he said.

"Steve Breyer is one of my best friends, and he votes against me every time I appear in court. Washington is a town of government people, and it is stupid to say that if they sit together at dinner, it raises some sort of conflict."

The justices are quick to say that they always prefer not to have to withdraw from a pending case simply to maintain the appearance of impartiality.

Stevens' decision not to step aside in the affirmative action case proved crucial to the outcome. The Michigan policy prevailed on a 5-4 vote, with Stevens in the majority.

White's recusal in the Detroit newspapers case proved crucial, too -- and it carried an ironic twist. The justices split 4-4 in the case, which cleared the way for the newspaper merger to go forward.

White had been a strong defender of the antitrust laws and a likely ally of those who were challenging the merger. "The effect of his recusal was that we lost," said William Schultz, a Washington lawyer who represented the union employees.

As Scalia and Ginsburg have said recently, the justices frown upon recusals because of the likelihood it will create an evenly divided court. "There is no one to replace us," Ginsburg said in response to questions about her involvement with the NOW Legal Defense Fund.

Experts in legal ethics say the better way to maintain impartiality -- and its appearance -- is to avoid the conflicts in the first place.

"First and foremost, you should avoid putting yourself in situations where you need to consider disqualification," said retired Los Angeles Judge David Rothman, the author of California's handbook on judicial ethics.

"The job of a judge or justice is to honestly decide extraordinarily important cases that come before the court. The job description does not include giving speeches and taking trips with those who have business before the court."

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