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When the Supreme Court considers the Solomon Amendment case of Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) at its April 29 conference (see article above), one issue on the minds of justices might be whether any of them should recuse from consideration of the case. Recusal issues have already shadowed the litigation. When a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit ruled last year, the court informed the parties that a majority of its members were recused, precluding en banc review. The court, as is customary, did not explain the recusals. But lawyers in the case speculated that the recusing judges had connections to the law schools involved. The respondent in the case challenging the Solomon Amendment is a coalition of 31 law schools and law school faculties. At least one justice has a direct connection to a law school in the coalition. Justice Ruth Bader Ginsburg’s husband, Martin, is a professor at Georgetown University Law Center, whose faculty is a FAIR member. In addition, according to last year’s financial disclosure forms, Justice Anthony Kennedy received $4,000 and Justice Clarence Thomas received $7,500 for teaching at New York University, whose law school is a member of FAIR. Justice Antonin Scalia also received $8,500 for teaching at Hofstra University School of Law’s summer program. The law school’s faculty is a member of FAIR. But these connections still might not trigger recusals, in part because FAIR is the named party, not the law schools themselves. In a 2003 case, Pharmaceutical Research and Manufacturers Association of American v. Walsh, there was a mass recusal among judges of the 1st Circuit, presumably because they owned drug company stocks. But when the case got to the Supreme Court no one recused, even though several justices own pharmaceutical stocks. � Tony Mauro

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