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Chief Justice William Rehnquist, in a rare public discussion of an ethical dilemma, said Tuesday he would continue to participate in the Microsoft antitrust case even though his son James is one of Microsoft’s lawyers in a private antitrust case in Boston. His statement, which drew both criticism and praise from judicial ethics experts, shed light on a problem faced by several other justices: what to do when a spouse, son, or daughter is a lawyer whose work might be affected by Supreme Court action. In fact, Justice Anthony Kennedy might have been faced with a similar dilemma if not for the fact that his son Gregory left Sullivan & Cromwell, Microsoft’s main law firm in the antitrust litigation with the Justice Department. Gregory Kennedy is now with an investment firm; it could not be determined when he left Sullivan & Cromwell. At the D.C. office of Gibson, Dunn & Crutcher, where Justice Antonin Scalia’s son Eugene is a partner, elaborate procedures have been developed to ensure that he does not benefit monetarily from the firm’s Supreme Court practice, according to partner Theodore Olson, who says he does not want to do anything to cause a justice to recuse. “One vote can make a big difference,” Olson said. According to Rehnquist’s statement, issued in conjunction with the Court’s refusal to take the Microsoft case on direct appeal, James Rehnquist is “one of the attorneys” at Goodwin, Procter & Hoar in Boston who is working on an unspecified private antitrust case for Microsoft. Regina Pisa, managing partner at Goodwin Procter, said Tuesday that James Rehnquist is part of a team that has been handling “a number of matters” for Microsoft for the last year. She said that the potential recusal of the chief justice “is not an issue we spent any time focusing on” when the firm was first hired by Microsoft. James Rehnquist declined comment. The chief justice said he “considered at length” and “consulted with my colleagues” to determine whether he should disqualify himself from ruling on the government’s case against Microsoft. He said he decided against disqualifying himself because “there is no reasonable basis to conclude that the interests of my son or his law firm will be substantially affected” by the case before the Supreme Court. That, he said, satisfies the federal law governing judicial recusal. Rehnquist also said his continued participation would not create an appearance of impropriety. “I do not believe that a well-informed individual would conclude that an appearance of impropriety exists simply because my son represents, in another case, a party that is also a party to litigation pending in this Court.” The chief justice went on to acknowledge that “a decision by this court as to Microsoft’s antitrust liability could have a significant effect on Microsoft’s exposure to antitrust liability in other courts.” But that, he said, is no different from the potential impact of many cases before the Supreme Court. “Even our most unremarkable decision interpreting an obscure federal regulation might have a significant impact on the clients of our children who practice law.” Rehnquist also sought to justify his decision by invoking the unwritten “rule of necessity” that makes the Supreme Court different from lower courts. In appeals courts and district courts, a disqualified judge can be replaced, he noted, but “there is no way to replace a recused justice. Not only is the Court deprived of the participation of one of its nine members, but the even number of those remaining creates a risk of affirmance of a lower court decision by an equally divided court.” New York University School of Law professor Stephen Gillers said Rehnquist made the wrong call. “He should step aside,” Gillers said. If the Supreme Court ultimately takes up the Microsoft case, Gillers said Tuesday, “Rehnquist is going to have to sit down and write or join an opinion whose result could have a conclusive effect on the case his son is handling.” It is not as if James Rehnquist is handling employment law cases for Microsoft, Gillers added. Private antitrust litigation involving Microsoft would almost certainly be influenced by the outcome of the government’s case against the software giant. “That’s enough for me,” said Gillers. Steven Lubet, a judicial ethics expert at Northwestern University School of Law, praised Rehnquist’s action — and his candor in airing the dilemma publicly. “Justices rarely say why they recuse, and now the chief justice is saying why he isn’t recusing,” said Lubet. “That’s admirable.” Lubet said the “prevailing view” is that judges need not recuse unless their relative is actually working on the case before the court. “If you go beyond that and apply a ripple effect, it gets very hard to draw the line.” At Gibson Dunn, according to Olson, Eugene Scalia does not participate in the firm’s Supreme Court cases, and the firm has developed an accounting procedure to diminish his partnership share by the amount he would otherwise get from revenue from the firm’s high court practice. Rehnquist’s daughter, Janet, is an assistant U.S. attorney in the Eastern District of Virginia. Other justices’ children who are lawyers include Eugene Scalia’s brother John, a member of San Francisco’s Curiale Dellaverson Hirschfeld Kelly & Kraeme; Susan Mullen, a daughter of Justice John Paul Stevens and special counsel in the Reston, Va., office of Cooley Godward; and Jane Ginsburg, daughter of Ruth Bader Ginsburg and a law professor at Columbia University.

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