Bench Memos

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Today’s Articles on Gonzales and Recusal


In an article today on Gonzales and recusal in the Washington Post and in another one in the Wall Street Journal, remarks of Prof. Steven C. Lubet are used to minimize the severe recusal baggage that Gonzales would bear as a Supreme Court justice. I have these comments on Lubet’s remarks:

1. There is nothing in Lubet’s remarks to indicate that he has examined seriously (or is even familiar with) the particular instances of recusal–on important national-security cases and culture-war cases (see here and here)–that Andy McCarthy and I have presented.

2. Lubet’s assertion that the recusal standards “are pretty elastic” is not a fair representation of the very specific language of 455(b)(3) (quoted herein). Moreover, although the outer limits of 455(a) are far from clear, key national-security cases not already covered by 455(b)(3) would fall within the core of 455(a), as Gonzales would be judging the legality of a specific policy or course of conduct that he helped design or advise on. (Scalia’s duck-hunting trip is therefore not remotely relevant to this question.)

3. Lubet’s observation that Gonzales is a named party in cases only in his official capacity is correct but beside the point. I have not argued that his being a named party suffices to require recusal, nor do I regard it as a significant factor.

4. Lubet observes that “[i]t would be entirely up to Gonzales to decide” to recuse and that the “Supreme Court is a law unto itself in these matters.” As a matter of enforceability, that is (almost) surely true. But it would be irresponsible, and an injustice to Gonzales’s integrity, to assume that Gonzales would not faithfully apply the recusal standards.

In short, it would be a serious mistake for anyone to find comfort in Lubet’s remarks.


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