James N. Markels, over at AFF’s Brainwash, points out an inconsistency:
Here’s a hypothetical for you: Say there’s a Supreme Court Justice that is about to hear a case where Organization X is a party. Organization X is a nonprofit group that the Justice formerly worked for, served as part of the group’s top leadership, and since getting on the bench has gone back as a celebrated guest to speak at the group’s rallies and functions. Federal law requires that “any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Should our hypothetical Justice disqualify him or herself?
Considering the recent outcry over Justice Antonin Scalia’s refusal to recuse himself in the pending case of Cheney v. U.S. District Court for the District of Columbia after it was revealed that he had gone duck hunting with a group including the Vice President soon after the Supreme Court had granted certiorari, one would think that the Justice in my hypothetical should clearly recuse him or herself from the case involving Organization X.
But my hypothetical was real, and the Justice chose against recusal. Justice Ruth Bader Ginsburg heard and ruled on Ashcroft v. American Civil Liberties Union, despite having served as the ACLU’s General Counsel and having been a member of its National Board of Directors before becoming a judge, and having spoken at several of the nonprofit’s events since. Just last year, in fact, Justice Ginsburg was the featured speaker at the ACLU’s their first-ever “Lobby Day” in opposition to the PATRIOT Act, which the ACLU described as part of “Attorney General John Ashcroft’s seemingly insatiable appetite for new law enforcement powers.” Hmmm…Ashcroft. Sound familiar?