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Ethics experts say Scalia, Thomas connections not conflicts of interest

Justices Scalia, left, and Thomas have no reason to step down from the election case, legal ethics scholars say

From CNN Sr. Correspondent Brooks Jackson

WASHINGTON (CNN) -- Supreme Court Justices Clarence Thomas and Antonin Scalia both have family connections to George W. Bush's side -- but ethics experts say neither justice has a conflict of interest or needs to step aside from voting in the Florida recount case.

Federal law requires "any justice" to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." And it also requires judges to step aside when a close relative "is acting as a lawyer in the proceeding" or "is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding."

LAWYER BIOS Eugene Scalia Ted Olson Barry S. Richard  TRANSCRIPT • Simultaneous audio and transcript of the hearing in Bush v. Gore (Courtesy Northwestern's Oyez Project and FindLaw) • Official court transcript of oral arguments in Bush v. Gore PDF | HTML  QUOTES In their own words: Key quotes from Bush v. Gore  AUDIO Listen to the audio from the Supreme Court hearing (December 11) Select Video Part 1 Part 2 Part 3 Part 4 Part 5 Part 6 (QuickTime, Real or Windows Media)  IN-DEPTH Reviewing the Vote: The U.S. Supreme Court hears Bush v. Gore  GALLERY Scenes of protest and patience as Supreme Court weighs Bush v. Gore  TIMELINE Key events in the Gore election contest Read the timeline  U.S. SUPREME COURT DOCUMENTS Read the Bush brief * Read the Gore brief * U.S. Supreme Court order granting a stay of recounts * More related documents * FindLaw documents requiring (Adobe Acrobat Reader)  RESOURCE How the U.S. Supreme Court voted on the recount stay  ALSO Bush, Gore briefs preview oral arguments at U.S. Supreme Court  VIDEO Long lines form outside the U.S. Supreme Court (December 10) Play video (QuickTime, Real or Windows Media) CNN's Charles Bierbauer reports on the showdown (December 10) Play video (QuickTime, Real or Windows Media) CNN's Mike Boettcher reports on what may happen if the election is not settled by the courts (December 10) Play video (QuickTime, Real or Windows Media)

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Here are the facts:

Clarence Thomas' wife Virginia recently sent an e-mail to 194 House and Senate aides suggesting they submit resumes "for transition purposes" to the conservative Heritage Foundation, where she is a senior fellow specializing in government studies.

But that doesn't constitute a conflict of interest for Thomas, according to Sheldon Krantz, a professor of legal ethics at American University's law school. "There's really not anything here," he told CNN in a telephone interview.

Heritage Foundation spokeswoman Khristine Bershers said Mrs. Thomas was part of the foundation's "Mandate for Leadership 2000" program, which she said is "designed to help the next president, whoever he may be, to organize an effective administration."

She said Mrs. Thomas sent her e-mail to several Democrats as well as to Republicans, and that Mrs. Thomas's pay at Heritage won't be affected by whether Bush wins or loses his Supreme Court case.

The Gore legal team hasn't objected to Justice Thomas's participation in the case, where he is thought to be among those most inclined to vote against a Florida recount for Gore.

Tuesday, however, a federal appeals court judge in Tennessee said he thought Thomas should step aside and not take part in the case. Judge Gilbert S. Merritt told CNN that in his opinion Mrs. Thomas's solicitation of transition resumes "would give her a substantial interest in the outcome of the case." Merritt said he is an old friend of the Gore family.

Two of Scalia's nine children are connected with law firms representing Bush.

• Eugene Scalia, 37, is a partner in the Washington office of Gibson, Dunn & Crutcher, where Bush lawyer Theodore Olson also is a partner.

• John Scalia, 35, has accepted a job offer with the Washington office of Greenberg Traurig. Another Bush lawyer, Barry S. Richard, is a partner in that firm's Tallahassee office.

Legal ethics expert Stephen Gillers of New York University's law school says Scalia isn't required to step aside. "It's not a basis for disqualification, so long as neither child is involved in the case," Gillers said.

Neither son is directly involved in the case. Eugene Scalia specializes in labor law. John Scalia won't actually join the Greenberg, Traurig firm until sometime next year, according to partner Joe Reeder, who said the job was offered weeks before the election and has no connection to the Florida case.

The law could require Scalia to consider stepping aside if Eugene's income could be "substantially" affected by the outcome of the case. He is one of 242 partners in Gibson Dunn, but the firm excludes from his pay any share in income from any Supreme Court cases. That is aimed at meeting the high court's written conflict of interest standards, contained in a statement signed by Justice Scalia and six other justices who have spouses, children or other close relatives who are lawyers.

The policy states they will step aside from cases when a relative is a partner in a firm handling that case, unless the firm has provided to the court "written assurances that income from Supreme Court litigation is, on a permanent basis, excluded from our relatives' partnership shares."

Eugene Scalia's firm gave the court such a written assurance two years ago. The seven justices said they leaned against stepping aside from any case because -- unlike lower courts where replacement judges can easily be found -- the high court has only nine Justices. "Even one unnecessary recusal impairs the functioning of the Court," the seven Justices say in their policy.

No Gore lawyer has objected to Scalia's participation. Lanny Davis, a former White House counsel, told CNN he sees a problem of "perception" and believed Scalia should at mentioned his sons' employment to the Gore legal team. "It should have been disclosed, that's the position I'm taking," Davis said. He stopped short of saying Scalia should step aside from the case.

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December 10, 2000
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December 10, 2000

Supreme Court of the United States
Supreme Court of Florida

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