Bench Memos

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More on Gonzales and Recusal


Today’s Washington Post article on three major cases on the Supreme Court’s docket next term provides more powerful evidence why those of us who admire Attorney General Gonzales should recognize that his recusal obligations as a Supreme Court justice would make him a terrible pick for the Court.

As I have previously discussed, the statutory recusal standards put in place in 1974 make it likely that Gonzales would have to recuse himself from virtually every case of importance to the administration, with devastating consequences for the administration’s legal prospects. For example, Gonzales’s recusal from the constitutional challenge to the federal partial-birth abortion act would almost surely result in the invalidation of that act (by a 4-4 affirmance of a lower-court ruling). (Ramesh Ponnuru’s article makes similar points.)

Gonzales would very likely have to recuse himself from all three major cases discussed in the Post’s article. (Recusal determinations turn on fact-sensitive inquiries, and it is possible, but I think highly unlikely, that a full understanding of the facts would alter this conclusion.)

Ayotte v. Planned Parenthood presents the constitutionality of New Hampshire’s statute providing for parental notification when minors have abortions. The questions presented include the standard of review of facial challenges to statutes regulating abortion. The United States can be expected to file an amicus brief in this case, precisely because the standard-of-review question directly affects litigation involving the federal partial-birth abortion cases. The attorney general would ordinarily take part in a decision like this. Recusal strike one.

Gonzales v. Oregon presents the question whether Oregon’s doctor-assisted-suicide law runs afoul of the federal Controlled Substances Act. The petitioner is the attorney general himself. Although I don’t think that being a named party in one’s official capacity in litigation necessarily triggers a recusal obligation, it is very likely, given the important and difficult issues that this case presents, that the attorney general has personally participated in decisions involving the litigation. Recusal strike two.

Rumsfeld v. FAIR presents the constitutionality of the Solomon Amendment, which requires universities, as a condition of their receipt of federal funding, to give military recruiters equal access. A number of schools, protesting the military’s policies on homosexual conduct, have challenged the law. It would be very surprising if Gonzales, both as White House Counsel and attorney general, had not personally participated in decisions about this case. Recusal strike three.

Given the unique and invaluable role that Gonzales has played and continues to play as the president’s top lawyer, there will undoubtedly be many other cases of great interest to the administration, both in the coming Supreme Court term and in later years, in which a Justice Gonzales would have to recuse himself. In light of these recusal obligations, it would seem to me that the only sensible conclusion that reasonable minds could reach is that it would be sheer folly for the president to nominate Gonzales to the O’Connor vacancy (or any other imminent vacancy).


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