Bench Memos

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Re: Defense of Gonzales on Recusal


I’d like to offer two general comments in response to my correspondent’s effort to minimize the exceptional severity of the recusal obligations that a Justice Gonzales would face:

1. It is, I think, crystal clear that Gonzales would have to recuse himself from critical national-security cases. These include (under 455(b)(3)) cases that are pending in the courts of appeals and on their way to the Supreme Court, like Hamdan and Odah (as well as Padilla, which involves judicial review of the president’s declaration of a citizen as an enemy combatant). They also include (under 455(a)) any other case, now or in the future, that challenges the legality of a specific policy or course of conduct that Gonzales helped design or advise on.

With Gonzales’s recusal, the administration cannot win these cases and establish the sort of precedents that it sees as essential in the War on Terror unless it wins over one of the steadfast members on the Left of the Court–Stevens, Souter, Ginsburg, or Breyer. In short, a Gonzales nomination would place all of these cases in serious jeopardy.

The news is not any better on the domestic culture war (where conservatives have the modest ambition of getting the Court out of the way, not of having it entrench their views). The starkest example is the federal Partial-Birth Abortion Act case, where Gonzales’s recusal will surely result in the invalidation of that critical initial step in the president’s effort to build a culture of life. But there are plenty of others as well.

2. Anyone who does not find these instances of required recusal to be dispositive against a nomination of Gonzales at this time would probably find little point in addressing the breadth of additional recusals. It is only in this further context that my correspondent’s observation about justices’ sitting on cases involving laws they supported as legislators comes into play. I will therefore limit myself to the observation that the Sixth Circuit case that my correspondent cites states merely that “a judge is not automatically disqualified from a case on the basis of having sponsored or voted upon a law [as a legislator] that he is later called upon to review as a judge.” I don’t dispute this proposition, but will merely note that it hardly follows that a White House Counsel who has specifically advised the President on the constitutionality of provisions in legislation in connection with the President’s decision to sign that legislation into law would not be obligated to recuse himself under 455(a) from cases where the constitutionality of those provisions is at issue.


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