Conflicts of interest in Bush v. Gore: Did some justices vote illegally?

Georgetown Journal of Legal Ethics, The, Spring 2003 by Neumann, Richard K Jr

Do these reports describe conflicts of interest that would have made Justice O'Connor's vote in Bush v. Gore illegal? The question is not limited to Justice O'Connor. The media have also reported events and circumstances that raise conflict-of-interest issues concerning participation in Bush v. Gore by Chief Justice William H. Rehnquist as well as Justices Antonin Scalia and Clarence Thomas. No media reports, however, have done so with Justices Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, John Paul Stevens, or David H. Souter.14

At the time Bush v. Gore was decided, Chief Justice Rehnquist had often been described in the press as a person who would like to retire but would delay doing so until a Republican president was in office and in a position to nominate a successor who could be confirmed by the Senate.15

The press has reported several times that Justice Scalia confided in others that he would like to become the next Chief Justice and that he understood that that could happen only during a Republican presidency. During the time Bush v. Gore was being litigated, Justice Scalia's son John worked at the law firm that represented the Bush campaign in the Florida courts, and Justice Scalia's son Eugene was a partner at the law firm that represented the Bush campaign in the Supreme Court, although the press reported that profits from the Bush v. Gore litigation were deducted by the firm from Eugene Scalia's income.16

On December 4, 2000-while Bush v. Gore was pending before the Supreme Court-Virginia Lamb Thomas, Justice Thomas' wife, sent an email to 194 Congressional aides, suggesting that if they wanted assistance in being considered for positions in the next administration, they could forward their resumes to one of Mrs. Thomas' coworkers at the Heritage Foundation, a conservative think tank that collaborates with the Republican Party.17 In addition, according to the Wall Street Journal, during her previous employment with a Republican leader in House of Representatives, Mrs. Thomas "spearheaded a leadership effort to gather embarrassing information about the Clinton-Gore administration."18 Mrs. Thomas told reporters in December 2000 that she and Justice Thomas never19 or "rarely"20 discuss their work lives with each other. Justice Thomas was nominated to the Supreme Court by George W. Bush's father, whose administration then fought hard to get him confirmed in one of the most divisive Supreme Court appointment controversies in history.

If the media reports concerning Chief Justice Rehnquist and Justices O'Connor, Scalia and Thomas are factually accurate, one would wonder whether statutory and constitutional recusal requirements were violated by one or more justices who formed the 5-to-4 majority in Bush v. Gore. This article explores the extent to which that might have happened. Part I examines the statutory and constitutional background of the judicial conflict-of-interest requirements governing federal judges. The heart of the article inquires into whether these requirements might have been violated by Justice Thomas (Part II), Chief Justice Rehnquist (Part III), Justice Scalia (Part IV), or Justice O'Connor (Part V). Part VI examines the extent to which conclusions reached earlier in the article might be affected by the quorum requirement in the Supreme Court, by the common law rule of necessity, by the principles of harmless error applicable to recusal issues, by waiver, or by timeliness requirements.