Can He Do That?

I'm still trying to get my mind round the idea that the Virginia judge who decided the Obamacare  case also owns a chunk of a Republican advisory firm.  My first thought was--can he do that?  On slightly closer scrutiny I suspect the answer is--maybe, just barely, yes.  The governing rule seems to be the one that says the judge must recuse himself in a case where his impartiality might be reasonably questioned.  I've never much liked the squishiness of that rule--I used to speak out against it  back when I did continuing legal education programs.  But if ever there were a reason for questioning, this would seem to be it.

But as my friend Richard suggests, a threshold question is--where were the government lawyer on all  this?  I assume it's the kind of question that only arises if somebody makes an issue of it.  Did they object?  What kind of ruling did they get, and from whom?   Did they even consider it?

There is a devil's bargain here, of course: if you question the judge's impartiality and lose, then you are stuck from the get-go with a judge who thinks don't think he is up to the job.  But if you don't make the objection and lose the case, then you've pretty much screwed the pooch.