The Chicago Tribune article that Jonathan cites reports the “fierce opposition” that the nomination of Alberto Gonzales would encounter from conservatives. But let’s assume that conservatives were convinced that Gonzales would make an outstanding justice. I would like to explain more fully my previous suggestion that Gonzales’s recusal obligations under federal law would make it folly for President Bush to appoint him to any imminent vacancy.
Section 455 of Title 28 of the United States Code provides that a Supreme Court justice (or other federal judge) shall disqualify himself from a particular case “[w]here he has served in governmental employment and in such capacity participated as counsel [or] adviser . . . concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” It further provides that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
These requirements were toughened up in 1974. Under the looser standards in effect before then, Justice Rehnquist was plagued by recurring problems stemming from his service as head of DOJ’s Office of Legal Counsel. Among other things, he did not participate in the landmark case of United States v. Nixon. Although the Court’s practice of not stating the reason for a justice’s non-participation in a case makes it difficult to determine with certainty in how many other cases Rehnquist was obligated to recuse himself, circumstantial evidence indicates that the number of cases was in the double figures. In addition, there was considerable (and lasting) controversy over at least one case, Laird v. Tatum, where he declined to disqualify himself.
With the tougher standards now in place, and with the far more extensive role (compared to Rehnquist) that Gonzales has played as White House Counsel in President Bush’s first term and as Attorney General now, it would seem likely that Gonzales would have to recuse himself from virtually every case of importance to the administration. With all the other outstanding alternatives available, what sense would it make to nominate someone with all this recusal baggage?