WHAT A CROCK:

Improper Advances: Talking dream jobs with the judge out of court. (Stephen Gillers, David J. Luban, and Steven Lubet, Aug. 17, 2005, Slate)

Four days before President Bush nominated John G. Roberts to the Supreme Court on July 19, an appeals court panel of three judges, including Judge Roberts, handed the Bush administration a big victory in a hotly contested challenge to the president's military commissions. The challenge was brought by Salim Ahmed Hamdan, a Guantanamo detainee. President Bush was a defendant in the case because he had personally, in writing, found "reason to believe" that Hamdan was a terrorist subject to military tribunals. The appeals court upheld the rules the president had authorized for these military commissions, and it rejected Hamdan's human rights claims—including claims for protection under the Geneva Conventions. [....]

The nominee's Aug. 2 answers to a Senate questionnaire reveal that Roberts had several interviews with administration officials contemporaneous with the progress of the Hamdan appeal. [...]

Did administration officials or Roberts ask whether it was proper to conduct interviews for a possible Supreme Court nomination while the judge was adjudicating the government's much-disputed claims of expansive presidential powers? Did they ask whether it was appropriate to do so without informing opposing counsel?

If they had asked, they would have discovered that the interviews violated federal law on the disqualification of judges. Federal law deems public trust in the courts so critical that it requires judges to step aside if their "impartiality might reasonably be questioned," even if the judge is completely impartial as a matter of fact. As Justice John Paul Stevens wrote in a 1988 Supreme Court opinion, "the very purpose of [this law] is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible." The requirement of an appearance of impartiality has been cited in situations like the one here, leading to the disqualification of a judge or the reversal of a verdict.

In 1985, a federal appeals court in Chicago cited the requirement of the appearance of impartiality when it ordered the recusal of a federal judge who, planning to leave the bench, had hired a "headhunter" to approach law firms in the city. By mistake—and, in fact, contrary to the judge's instructions—the headhunter contacted two opposing firms in a case then pending before the judge. One firm rejected the overture outright. The other was negative but not quite as definitive. Writing for the Court of Appeals, Judge Richard A. Posner emphasized that the trial judge "is a judge of unblemished honor and sterling character," and that he "is accused of, and has committed, no impropriety." Nevertheless, the court ordered the judge to recuse himself because of the appearance of partiality. "The dignity and independence of the judiciary are diminished when the judge comes before lawyers in the case in the role of a suppliant for employment. The public cannot be confident that a case tried under such conditions will be decided in accordance with the highest traditions of the judiciary." Although both law firms had refused to offer him employment, the court held that "an objective observer might wonder whether [the judge] might not at some unconscious level favor the firm … that had not as definitively rejected him."

Judge Roberts was, of course, not a suppliant for employment -- a loaded term which as careful a draftsman as Judge Posner presumably chose for that reason -- but a Federal judge responding to a request for an interview from the executive. The idea that either the president can't look to the lower federal benches when he wants to fill higher court openings or that the judges so approached are required to recuse themselves from cases involving the federal government seems lunatic. The D.C. Circuit in particular hears loads of such cases, which is why it's considered the on-deck circle for the Court. The reasoning -- if such it can be called -- of this essay would lead to the conclusion that no Associate Justice should rule in any case when there's a Chief's opening because they could be seen as bucking for his job. Of course, that's reason enough for the Right to embrace this idea--President Bush could simply announce tomorrow that he's closely watching justices Breyer, Ginsburg, Souter and Stevens and plans to name whichever one rules in the government's favor most often to be the next Chief, effectively forcing them to recuse themselves from every federal case the Court hears.

MORE:
A Shaky Ethics Charge (Ronald D. Rotunda, September 6, 2005, Washington Post)

The problem with Gillers's reliance on the Scott case is that he leaves out what the case really said: "By December 23, 1984, when he had decided to accept the position in the Executive Office for United States Attorneys, the judge had a duty to recuse himself from Scott's case."

The Scott case does not support Gillers's argument; it undermines it. What Scott says, at most, is that Roberts had no obligation to withdraw from a case in which the government is a party before he was offered and decided to accept the position. That date could not be before the vacancy existed; in fact, it could not be before July 15, when he met Bush for the first time. By that time, the Hamdan case had already been decided.

Judges are offered other jobs all the time. A Supreme Court justice may become chief justice, or, like Justice Arthur Goldberg, U.S. ambassador to the United Nations. Appeals court judges may become Cabinet officers. Trial judges may become appellate judges. Gillers's stance would require judges to recuse themselves in any case in which the federal government is a party.

Gillers's response is that the Hamdan case was "hotly contested." I have never found any case to be "coldly contested," or even "warmly contested."

Do we really want to give the president or attorney general the power to force recusal of one or more judges on a panel simply by asking the judge if he might be interested in a different position that is not yet open but that eventually will be? Should Judge (later Justice) Ruth Bader Ginsburg have recused herself from any case involving the federal government from the time that Justice Byron White announced his resignation until the time President Bill Clinton announced her appointment? What of Judge (later Justice) Stephen Breyer, who was not nominated until a year after his initial interview with Clinton?

The president is not the only person responsible for court appointments. In many states, judicial selection committees present choices to the president. The case law (which Gillers does not cite) has uniformly rejected motions for disqualifying judges from cases in which members of the selection committees are directly involved.

Posted by Orrin Judd at September 13, 2005 6:36 AM