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Did Rehnquist Compromise Ethics On Microsoft Case?
Several folks noted a blurb running over at ZD about
Supreme Court Justice Rehnquist's questionable position on Microsoft. Apparently his son is representing Microsoft in antitrust matters. Here's a longer story with a bit more information. Since
they decided not to advance the case directly to the Supreme Court, this may have a significant effect on the case.
Actually there is, the american public. We hold ultimate authority in this country. The government exists and derives its power from us. If the supreme court were to do something that the majority of americans were strongly opposed to, you can bet your bottom dollar something would be done about it directly or indirectly.
Lee
Muslim community leaders warn of backlash from tomorrow morning's terrorist attack.
More than one supreme court justice made the choice not to advance the case.
I do not think that Judge Rehnquist influenced all of them. He may have violated ethics by particpating in the decision, but since it is a Judge's job to be informed of the case, chances are one of the other Judges may have known about his son also.
Anyway, don't you think it would have been worse (and he could have done more damage) if he had gotten the case to the Supreme Court and tried to influence the decsion on that level? Even if the Government loses - they can appeal, so technically, the case may still reach a court where he has a fair amount of influence.
The constitution of the vote has been deliberately withheld, so for
all we know the vote was 5-4. The figure of an 8-1 decision comes
from the fact that there was only one published dissenting view
(Justice Breyer), but there may have been other unpublished dissenting
views.
28 USC 455. Disqualification of justice, judge, or magistrate [judge]
(a) Any justice, judge, or magistrate [judge] of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
blah blah blah
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
blah blah blah
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
Rehnquist's son is representing Microsoft in private Antitrust suits. A son is related to the father in the first degree of legal consanguinity.
His private suits are all won if the Supreme Court declares Microsoft has no monopoly and maybe even if they are simply ruled to not have abused their monopoly. High profile lawsuits involving the richest private client on earth certainly constitute "an interest" where I live. Certainly, if Rehnquist Senior can make Rehnquist Junior a winner against all comers by the disposition of the DoJ's Antitrust suit then that means he can substantially affect the interest of someone closely related to him. If OTOH, he does not exonerate Microsoft, then Junior's billable hours are going to be much, much greater than if he did. He really can't help but affect his son's interest whatever he does. He should disqualify himself -the law demands it.
If he will not recuse himself he has to ignore black letter law to do so. Doesn't he care that behaving with disregard for US Laws concerning his office casts a shadow on whatever decision the Court eventually produces? I wonder what he'd say to a young lawyer who reminded him that according to the language of the law, even if the relative wasn't his son but was a niece or nephew, he's obliged to recuse himself. Even if it were not his niece or nephew but their spouse he should also recuse himself...
If the law is so insistent about this as to demand self disqulification in cases affecting the interests as remote as those of nephews' and neices' spouses then how in the world can Rehnquist blithely ignore the fact that it's his son ? Doesn't this by itself fail the first sweeping clause--that a judge should disqualify himself "in any proceeding in which his impartiality might reasonably be questioned"? He already looks biased to me by his stubborn denial of his family's involvement. According to Rehnquist a reasonable person would not believe that he has an appearance of conflicting interests, but then he's never been a dispassonate judge of what's reasonable and rational...Nor has he ever been particularly susceptible to the sense of shame. William Rehnquist simply does not believe the laws regarding recusal for conflicts of interest has ever applied to him.
One of the most famous cases or controversies over this matter involves Rehnquist himself. In the late sixties it became known that the Department of the Army was conducting surveillance --widespread domestic surveillance-- of lawful civilian political activities. This resulted in the class action complaint, Tatum v. Laird . Assistant Attorney General William Rehnquist represented the Nixon Administration ( Laird being Melvin Laird, the Secretary of Defense), before a Senate Judiciary subcommittee in hearings on a key point of Constutional law. The issue was whether pervasive, Constitutionally questionable surveillance (w/ no national state of emergency declared, no Federal property endangered, and ONLY the vague request of a state law enforcement agency to lend aid under the Civil Disturbances Statutes) of peaceable, lawful activities was or wasn't an infringement of 1st Amendment free speech rights of the people being monitored.) You can guess which side Rehnquist was arguing. Anyway, while the case flipflopped through the appeals process, Nixon put Rehnquist on the Supreme Court. Tatum v. Laird inevitably arrived in the Supreme Court docket. The newly minted Justice refused to step aside and recuse himself despite having been a counsel for the respondent in a legal proceeding regarding the self same case. In the words of the lead plaintiff attorney, himself a target of Army surveillance: It was as if Billy Martin had resigned as manager of the New York Yankees after the sixth game of the World Series and taken the job of umpire for the seventh game. That's right--this man faced Rehnquist first as an witness and adversary in the Senate hearings and later as a Justice in the Supreme Court on the same case. And Rehnquist refused to heed suggestions that he might be a wee bit biased. Rehnquist eventually voted with the majority in 1972 to allow the US military to monitor and collect information on your lawful political activities without a declared state of emergency in effect, on an ongoing basis-- 1st, 2nd, 3rd and 4th Amendments to the Constitution be damned. The result of this sterling defence of individual rights by the Judiciary was Congressional passage of the Federal Privacy Act of 1974.
When microsoft is involved even small news items gets blown up to be 1 of the 10 headlines of the day.
Is this really news?
Please answer that question after reading for example the hard legal stuff from a computer scientist who was an expert whitness in the trial.
Just my 2 eurocents,
Johan