Bench Memos

NRO’s home for judicial news and analysis.

Roberts and Recusal


According to this article, liberal law professor Stephen Gillers claims that Judge Roberts should have recused himself from further participation in the case of Hamdan v. Rumsfeld once the Administration began interviewing him for a possible Supreme Court nomination. The argument, which Gillers says he is developing into an article, apparently runs like this: (1) Section 455(a) of title 28 requires that a judge “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” (2) The Hamdan case, which presented a challenge to the administration’s use of military commissions to try enemy combatants, was very important to the administration. (3) It would be reasonable to think that Judge Roberts’s desire to advance his candidacy for the Supreme Court might make him partial to the administration’s position in Hamdan.

Admittedly, the language of section 455(a) is so open-ended that, once you get beyond its core, it is not easy to discern from its text alone the line between what it prohibits and what it doesn’t. (By contrast, section 455(b)(3) and the core of section 455(a)–which I discussed extensively in connection with Attorney General Gonzales’s potential recusal obligations–are much more clear.) In advice that other ethics gurus questioned, Gillers himself advised Justice Breyer last year that Breyer could take part in a case presenting the question whether the sentencing guidelines are constitutional, notwithstanding Breyer’s own extensive involvement in creating the guidelines.

The line that Gillers proposes here seems highly dubious. Consider:

1. Even before he interviewed for a possible Supreme Court nomination, Roberts had ample reason to believe that he was on the administration’s short list. Why should the fact of an interview change his recusal obligations? I also note that there was not even an announced vacancy at the time of his initial interview, though I would not see that fact as decisive.

2. Even before he interviewed, Roberts, like dozens of other federal judges, could be said to have had an interest in advancing his candidacy for the Supreme Court. Indeed, every judge has all sorts of extraneous incentives (praise from media and academia, for example). We reasonably expect judges to be able to act impartially, notwithstanding the objective existence of these incentives. Why should the fact of an interview decisively change the calculus?

3. Roberts undoubtedly has lots of cases in which the United States has a significant interest. How would Gillers draw the line between significant and insignificant cases?

4. If the White House invites, say, Justice Ginsburg in to interview for the position of Chief Justice, would Gillers maintain that she has to recuse herself from all cases of significant interest to the Administration? If so, please set up that interview.

The same article has law professor Deborah Rhode saying that Roberts’s non-recusal doesn’t “reflect best practices” but also probably doesn’t violate section 455(a). But if Roberts wasn’t required to recuse, then he was obligated not to recuse. It makes no sense to import corporate-management jargon like “best practices” into recusal decisions.


Sign up for free NRO e-mails today:

Subscribe to National Review