The Recusal Distraction

By Mike Dorf

Back in 2004, when Justice Scalia was taking some heat for his refusal to recuse himself from a case involving Vice President Cheney's energy policy task force based on their having gone on a duck-hunting trip together, I came to his defense.  Here was a key portion of my analysis:

Suppose that Justice Scalia and his friend Vice President Cheney had also been accompanied on their duck-hunting trip by Justice Scalia's friend Justice Ruth Bader Ginsburg. (If you have difficulty imagining Justice Ginsburg duck hunting, imagine the threesome at the opera instead.) Would anyone think that her impartiality would be called into question because of social interaction with the Vice President? Would the Sierra Club have sought her recusal? 

Of course not. And why not? Because Justice Ginsburg is, as a matter of judicial philosophy, less prone to accept claims of executive power than Justice Scalia. 

The real objection, as everyone who understands what's going on here knows, is not that Justice Scalia went duck hunting with Vice President Cheney. The objection isn't that they're friends, either. The real objection is that Justice Scalia and Vice President Cheney share an approach to executive power that the plaintiffs dislike. 

I dislike that approach as well. I also think that killing animals for sport (or food, for that matter), is wrong. But I don't see how either of those substantive views I hold counts as a basis for recusing Justice Scalia.

I find myself in roughly the same place when thinking about the controversies over the last couple of years involving recusals and non-recusals by Justices Kagan and Thomas.  The latest episode involves the question of whether Justice Kagan will have to recuse herself from a case challenging the Defense of Marriage Act (DOMA), if and when one reaches the Court.  As explained in this helpful piece by Lyle Denniston on SCOTUSblog, whether Kagan recuses apparently will depend on which (if any) of several pending certiorari petitions the Court grants.  If the Court takes a First Circuit case she's out; if the Court takes a Second Circuit case, she's in.

Let's assume that Kagan is correctly applying the relevant standard: Direct participation in a case as a lawyer calls for recusal when the case arises before the same person once she has become a judge, but does not require recusal from a case presenting the same (or nearly the same) issues in another case.  Does that standard make any sense as applied to a Supreme Court Justice who was formerly Solicitor General?  I think not.

To be sure, there are circumstances in which the standard is sensible.  Suppose that Lawyer X represents the incumbent managers and board of directors of the Acme Corporation against a shareholder derivative action challenging some allegedly fraudulent financial statement.  Then X is appointed to the bench and that very lawsuit against Acme is randomly assigned to Judge X.  Obviously X should recuse herself.  And equally obviously, Judge X need not recuse herself in all future litigation alleging fraud by other managers and directors of other companies.  We would legitimately worry that X's work as a lawyer for Acme on this particular case creates a bias, or at least the appearance of a bias, for Acme's managers and directors.  But future cases involving the same or similar legal issues with respect to other defendants would not fall within that bias.  And this would be true even if, as a result of X's representation of Acme, X had developed views about the circumstances under which shareholder derivative suits ought to succeed against corporate managers and directors.  Indeed, we might even imagine that one reason Lawyer X was named to the bench was to bring some of her expertise in corporate and securities law to the judiciary.

However, Justice Kagan's circumstances look quite different.  As the Solicitor General peripherally involved in defending DOMA, she may have developed a residual bias for the government.  But if so, surely that would be a bias for the government's interest in defending DOMA, not a bias for the government's interest in defending DOMA in Massachusetts (First Circuit) but not in Connecticut (Second Circuit).  If we think about this issue by analogy to my hypothetical derivative suit, we might imagine that Judge X is asked to adjudicate a new lawsuit alleging fraud by the same managers and directors of Acme that X formerly represented.  If we worry about the appearance of impropriety in the original hypothetical case, we would likely worry about the same appearance in another case against Acme involving similar allegations.  So if Justice Kagan needs to recuse herself from a First Circuit DOMA case based on party bias, she should have to recuse herself from all such cases based on party bias.

But if the worry is party-based, then why stop at DOMA cases?  Shouldn't Justice Kagan have to recuse herself in all cases in which the U.S. government is a party?  Of course not.  If that were the rule, then no former SG--or government lawyer--could become a Supreme Court Justice.  Only two current Supreme Court Justices (Kennedy and Ginsburg) were not federal executive branch lawyers at some point in their career.  Hence recusal based on the appearance of loyalty to a past client cannot possibly be a basis for recusal of a Supreme Court Justice who formerly represented the federal government.

So if the worry is not that a current Justice developed loyalty based on party, it must be that he or she developed a bias based on the subject matter.  Yet that's clearly not the law either--even in the private party case, as we saw with my hypothetical case.

And anyway, the whole notion that Justice Kagan should have to recuse because she developed a bias in favor of upholding DOMA in virtue of her work as SG is ridiculous.  There is simply no plausible scenario in which the Supreme Court votes to strike down DOMA but Justice Kagan dissents.

Now, to be fair, one reason for recusal is that an unrecused judge might bend over backwards to avoid showing bias against a former client, and thus unfairly disfavor her former client.  But that's also quite unrealistic here.  As with Justice Scalia's participation in the Cheney case, everybody understands that whatever druthers Justice Kagan may have relate to her views about how best to interpret the Constitution, not any bias developed (or perceived to have been developed) as SG.