Edition: U.S. / Global

ON LANGUAGE; Recuse, J'accuse!

Published: March 12, 1989

I HAVE ALWAYS RE-cused myself from anything to do with communications,'' said Clayland Boyden Gray, President Bush's legal counsel and chief ethics adviser. I had just asked him, with no apparent malice aforethought, for copies of his financial disclosure forms for the past three years, a request that puts some Government officials on the defensive.

Turned out he was chairman of the board of a half-billion-dollar communications corporation while he was on the Federal payroll. >Recusal - self-disqualification - was not enough; when New York Times reporter Jeff Gerth made known the outside income and responsibilities, Mr. Gray was forced to resign from the corporate board and amend his incomplete ethics forms.

To reassert his standing as Mr. Bush's ''ethics czar'' (counting the drug czar William J. Bennett, we already have a two-czar Administration), Mr. Gray promptly zapped the new Secretary of State, James A. Baker 3d, for failing to divest himself of stock in a bank holding company.

Mr. Baker, wrote Walter Pincus in The Washington Post, had been ''>recusing himself'' from matters that might cause the appearance of conflict of interest, but counsel Gray's position cited a Justice Department ruling ''that top Administration officials whose personal holdings would inevitably and predictably benefit from policies they help establish cannot simply >recuse themselves from involvement in those policies.''

We have here a verb with a small past and a big future. Three years ago in this space, in a piece entitled ''Recuse My Dust,'' lexicographers were put on Red Lex Alert: >recuse, not in the dictionaries with its present meaning, was no nonce term.

Although the new Chambers English Dictionary fails to include the newer sense of this hot term, Webster's New World, in its third edition, promptly came through: ''to disqualify or withdraw from a position of judging, as because of prejudice or personal interest.'' The unabridged 1987 Random House II agreed: ''to withdraw from a position of judging so as to avoid any semblance of partiality or bias.''

Almost right, fellas, but not quite. The reflexive verb is listed there as both transitive (I recuse myself) and intransitive (I recuse), but an intransitive use in the current sense is hard to find. The Random House and New World definitions are sharply disputed by Bryan A. Garner, author of A Dictionary of Modern Legal Usage and editor in chief of the Oxford Law Dictionary project.

''Pishposh!'' says the lawyer Garner, at the University of Texas/Oxford Center for Legal Lexicography. (Lexies interject printably; I'm working on the derivation of >pishposh.) ''No judge would say, 'I therefore recuse.' Because >recuse is virtually always reflexive today, it cannot be used in the passive voice, unlike >disqualify. To say that a judge is >disqualified is perfectly idiomatic, but to say that he is >recused is not.''

Then what's the difference between >recuse and >disqualify? ''>Disqualify might always be used in place of >recuse,'' says Mr. Garner, ''but the reverse does not hold true. >Disqualify, the broader term, may be used of witnesses, for example, as well as of judges, whereas >recuse is applied only to someone who sits in judgment, usually judges or jurors.''

Let's snoop around. ''The verb >recuse is not found in Black's Law Dictionary,'' says Nancy Slonim at the American Bar Association in Chicago. She took what she calls an informal poll of her associates (''Hey, guys, I got this reporter on the phone -any difference between >recuse and >disqualify?'') and reported, ''A judge would recuse him- or herself, but would be disqualified by an outside party.'' Thus, in some legal minds, >recusal is done to oneself; >disqualification is done to one.

''The terms are now virtually interchangeable,'' says Prof. Geoffrey C. Hazard Jr. of Yale Law School, who is one of the pioneers in the study of straight-arrowship in the law. But that distinction can still be made: ''>Recuse has the sense of 'I exit' as distinct from 'I am thrown out.' >Disqualify, on the other hand, has a more sinister or invidious implication, usually indicating what a party would do to someone else, rather than to oneself.''

Because there is less presumption of independence from contamination nowadays, both in judges and other officials, the invidious connotation of >disqualify is withering, and the word is used as a synonym for >recuse. ''I would say the most commonly used word now is >disqualify,'' guesses Hazard, ''but another possibility is >withdraw.'' Others include >remove (oneself) and >decline to sit.

The reflexive form of >recuse came roaring into the language around 1950. A computer search done by the lexicographer Garner shows only 38 cases in which the word appeared that way before then, and more than 3,000 cases since then. (The earliest citation was 1849, in Fourniquet v. Perkins. You still find people named Perkins.) In previous centuries, the verb >recuse, which dates back to 1387, meant ''to reject or object to a judge as prejudiced.'' >Recusant was a noun meaning ''dissenter''; >recusancy was a state assumed by Roman Catholics from the 16th century on who refused to go to the Church of England.

But then the meaning changed direction, turning the refusal in on oneself. Carla Wheeler of the University of Texas, a student of both linguistics and the law, speculates that the verb >recuse as we use it now may be a back-formation from the adjective >recusant, which meant ''refusing to acknowledge authority''; it was a short step from that to ''refuse to exercise authority.''

You want my decision on whether to chuck out >recuse as legalese, too often confused with >excuse or >rescue, and to use >disqualify in all cases. Well, I'd like to, but you see, I own stock in >recuse. . . . Kind 'n' Gentle

SOMEWHERE IN THIS land there is a marketing specialist working on a hand lotion or a drainpipe cleaner to be called ''Kind 'n' Gentle''; it seems the most natural product name to adopt in the Bush era. (Lipstick manufacturers are surely competing for the rights to ''Read My Lips''; if not, get on it today, fellas.) Ever since his use of the phrase ''a kinder, gentler nation'' in his acceptance speech and reiteration of the modifiers in his Inaugural Address, those two adjectives have been identified with George Bush. The question arises: have they ever been used together before?

''It didn't sound right to my ear,'' writes Bruno Stein, director of the Institute of Labor Relations at New York University. ''It began to occur to me that I had seen the phrase before. . . . After some research, I have found the answer. The first adjective, as I had remembered it, is >kindlier. That word sounds warmer and cuddlier than >kinder, but perhaps you can explain the difference in meaning to your readers.''

I'll noodle that around. Meanwhile, here's what Mr. Stein found. The great American defense attorney Clarence Darrow once made this comment about Eugene V. Debs, the labor leader and Socialist who drew more than 919,000 votes for President while serving a jail term stemming from his pacifist convictions: ''There may have lived somewhere a kindlier, gentler, more generous man than Eugene Debs, but I have not known him.''