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By appointing Eugene Scalia as the Labor Department’s top lawyer last week, President George W. Bush may have put one of his favorite Supreme Court justices in an awkward spot. Scalia, 37, is a son of Justice Antonin Scalia and would, as solicitor of labor, affix his name to a significant number of briefs filed in cases before his father’s court — possibly triggering recusals for the justice in some of the most important cases the Labor Department litigates. And that could deprive the business community of one of the most solid votes it has on the high court on labor issues, says Stephen Bokat, general counsel of the U.S. Chamber of Commerce. “Justice Scalia’s is not a vote we would want to lose,” says Bokat. “He is someone we aim for.” But, Bokat hastens to add, “I think very highly of Gene Scalia, and I don’t think the recusal issue should stand in his way.” Under federal law, judges are required to recuse themselves in cases in which a close relative is “acting as a lawyer in the proceeding” or has “an interest that could be substantially affected” by the outcome. In 1993, seven justices — including Scalia — publicized a statement of policy that would govern their recusals when lawyer-relatives become involved in cases before them. The statement followed the law, but suggested a relative’s partnership in a firm before them would not automatically trigger a recusal. Among other reasons, the justices noted that unlike other courts, no other judge can fill in when a justice recuses. Court officials referred to the 1993 policy last week when asked to comment on how Justice Scalia would handle the recusal issue concerning his son. Last year, Chief Justice William Rehnquist declined to bow out of Microsoft v. United States even though his son James did unrelated antitrust work for the Microsoft Corp. at Boston’s Goodwin Procter. “There is no reasonable basis to conclude that the interests of my son or his firm will be substantially affected,” Rehnquist said in an unusual statement at the time. But with Eugene Scalia’s name actually on the briefs filed with the Court, the Rehnquist precedent may not always apply to Scalia. Justice Scalia’s course of action, says New York University law professor Stephen Gillers, could depend on an assessment, case by case, of the level of his son’s involvement in the Labor Department’s briefs before the Court. “If a case is Eugene’s case, among others, the father should not sit,” Gillers says. But if Scalia did not participate or has no personal or policy stake in the ruling, Justice Scalia might not have to recuse, says Gillers. A database search indicates that past Labor solicitors have appeared more than 175 times on briefs in cases argued before the Court in the last 25 years, along with the U.S. solicitor general. Henry Solano, the most recent solicitor of labor in the Clinton administration, says he “personally reviewed all the recommendations and briefs” that went to the SG’s office in pending Supreme Court cases. But Solano, now a partner at LeBoeuf, Lamb, Greene & MacRae, adds that the final position of the government was always determined by the solicitor general, the Justice Department official with the ultimate responsibility for stating the government’s views to the Court. As a result, Solano says, “it does not appear to be an obligated recusal” in all cases. Other past Labor solicitors also said their name on the brief was not an accurate measure of their involvement. “It’s not going to be Gene Scalia sitting down and writing a brief,” says Akin, Gump, Strauss, Hauer & Feld partner George Salem, a Reagan-era Labor solicitor who thinks Scalia will be “a great credit to the office.” Salem adds: “In the vast majority of Supreme Court cases, you’re not personally involved.” Thomas Williamson Jr., a Covington & Burling partner who was solicitor of labor from 1993 to 1996, recalls only two instances in which he personally met with the solicitor general to urge a certain position before the high court. He took a “fairly active role” in several other Supreme Court cases. Williamson acknowledged that his personal involvement was at its greatest in the cases that had the most policy-making significance. That truism could mean Justice Scalia will feel compelled to recuse in the cases that matter the most for the Bush Labor Department. Alternatively, Eugene Scalia could stay out of those cases and off the briefs, although that might not always cure the problem. Supreme Court litigation represents only a tiny portion of the work of the sprawling legal department the younger Scalia will take over if confirmed. Often described as the second-largest legal department in government, it has more than 500 lawyers nationwide. It oversees enforcement of more than 150 laws, ranging from mine safety to pension and wage and hours laws. Unlike other federal agencies, Labor Department lawyers have the statutory authority to litigate cases without Justice Department clearance beforehand, Williamson notes. “The Labor solicitor has a lot more authority than the typical general counsel,” he says. But at the appellate level, the Justice Department sets policy, as with other executive branch departments. Eugene Scalia declined to comment on the potential recusal issue, saying only that he was “honored and pleased” to be nominated. Scalia is currently a partner in the Washington, D.C., office of Gibson, Dunn & Crutcher, which argues numerous cases before the Supreme Court. The firm has avoided recusal problems with his father by assuring the Court that Eugene Scalia would not profit personally from its Supreme Court practice — following a procedure outlined in the justices’ 1993 policy statement. In addition, Eugene Scalia, though an appellate lawyer, did not work on the firm’s Supreme Court cases. During last December’s post-election litigation over the Florida recount, Gore partisans noted that Eugene Scalia’s partner Theodore Olson — now the solicitor general-designate — was George W. Bush’s advocate before the high court and urged Justice Scalia to recuse. He remained in the case and voted for Bush’s position.

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