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Bench Memos

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40,000 Pages



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So what do the 40,000 pages of John Roberts’s records released by the Archives today tell us? John Roberts has a brilliant and comprehensive legal mind, writes with grace and clarity, was a strong advocate of the Reagan administration’s conservative policies, and criticized the ineffective “feel good” proposals offered by the Left in the 1980s.

Let’s hope the Left uses the Roberts nomination to refight the battles over forced busing, racial quotas, comparable worth, and other liberal follies.

I may have one or two further posts on these documents, but they really simply confirm what we already know. My guess is that I’ll be busier tomorrow responding to the usual distortions from the usual suspects.

Roberts Misrepresented (Again)



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Once again someone claims Judge Roberts argued that the Endangered Species Act could not be used to protect intrastate species under the commerce clause. This time it’s Noah Sachs, a lecturer at Harvard Law School, writing in the Baltimore Sun. Sachs writes:

Mr. Roberts voted to rehear the case on the grounds that the Endangered Species Act, passed under Congress’ authority to regulate interstate commerce, could not be used to protect a “hapless toad that, for reasons of its own, lives its entire life” in only one state. (emphasis added)
As I’ve noted ad nauseum on this site, this is not true. (See, e.g., here, here, or here. Indeed, environmental litigators who work in the field have noted this point, and news organizations that have made this claim in the past have issued corrections (see here and here).

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More on Judicial Activism



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Matt Franck would not call it “judicial activism” when a judge upholds a law that is, in truth, unconstitutional. Matt agrees that this reluctant judge would be wrong. He says we could call his judgment “wrongheaded judicial restraint,” or judicial “passivism.” But “judicial activism”–no. Never.

After further desultory remarks, Matt says it is time for him to “duck and cover.”

Of course, there is little point in arguing about definitions as such. One of the privileges of authorship is the sovereignty of stipulation: You get to settle what terms mean, as you use them. If Matt wants a narrower definition of “judicial activism” than we use, that is fine by us. If Matt wants to describe a decision we all agree is wrong by some other name, that is fine, too. The most important thing is that we agree the decision is wrong.

But not the only important thing. (Here is where Matt may want to duck.) Matt may stipulate as he wishes and still communicate clearly. (Knowing Matt’s work, undoubtedly he will.) But it will require of him extra care and precision because we think that Matt’s way of defining things is not perspicuous. We think it is better–more transparent, more effective–to define things as we did in our last post: When a judge adopts as a rule of decision a norm that is not found in the constitutional text, its logic, or history or structure, then he’s acting like a legislator. He is resolving the case on the basis of extra-constitutional sources. He is a “judicial activist,” whether he strikes down the challenged law or upholds it.

Judicial decisions involving the Constitution can be wrong in many ways that no one would call “activist.” A solid originalist may be wrong as to the ratifiers’ understanding of the provision at issue, and mistakenly attribute to them a principle which they, in fact, did not ratify. Or he may be mistaken about the logical inferences following from the principle he applies, even if he understands the principle correctly. Or the solid originalist may mistakenly characterize some fact, or congeries of facts, such as whether Wicca is really a “religion” for purposes of the First Amendment. There is plenty of room here for error, error that leads the solid originalist to invalidate what he should uphold, or to uphold what he should invalidate.

None of these errors involves “judicial activism” as we use the term. It is true that the first kind of honest mistake may involve, objectively speaking, the judge’s adopting a rule of decision which is not really traceable to the text, logic, history, or structure of the Constitution. But it makes no sense to brand this mistake the work of an “activist.” Judicial activism necessarily involves, we submit, some more or less conscious choice to substitute one’s judgment for traditional source material, in order to “update” the Constitution, to avoid an allegedly benighted result, or for another of the many reasons catalogued in the opinions of, for example, William Brennan.

All too often Brennan substituted his own views of what justice required for those of the American people, as solemnly embodied in legislation or in the Constitution, or both. When he did so, he was an activist judge, whether he upheld or invalidated the law or government practice at issue. Whatever else may be wrong with a court’s decision–and Robert, Rick, and Matt all point to useful distinctions among decisions of various sorts–a judge who relies upon extra-constitutional sources is an activist. Full stop.

We think defining “activism” according to the illicit (extra-constitutional) source of the deciding rule–and without regard for results–leads to more effective communication about the phenomena at hand. We think it makes the most sense of common usage of the term.

One consideration here has not been mentioned so far by Matt or his respondents: Every litigant in an American court–state, local, federal–is entitled to have only constitutionally valid rules applied to him. No litigant should have to bear the force of an unconstitutional law. Unconstitutional “laws” are null, void. They are not really laws at all. A judge who applies such a law anyway–a judge who upholds the unconstitutional law–is, more or less wittingly, an accomplice to oppression.

Matt agrees that this is wrong. We would not agree to call it “passivism”
or misguided “restraint.” We think it is more apt to call it “activism.”

Dems to FOIA Documents



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The DNC is organizing an effort to seek memos written by John Roberts while serving in the Solicitor General’s office under the Freedom of Information Act (FOIA). It’s a crass publicity stunt, as the documents in questions are almost certainly exempt from FOIA, but if you wish to join Governor Dean’s request, you can do so here. The actual petition is here.


More Roberts Records



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Ho hum. Another day, another 40,000 pages of documents.

In a few hours, I and a few other lawyers will be locating and reviewing the documents of interest in this latest release. I hope to discuss these documents on Bench Memos this afternoon.

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Here It Comes



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From a story in the Boston Globe this morning:

Leading liberal groups, looking to engage the public, say they will probably fight the Senate confirmation of Supreme Court nominee Judge John G. Roberts Jr. before hearings begin on Sept. 6 — a campaign that could include statements and television ads portraying him as a conservative with extreme views on abortion, affirmative action, civil rights, and equal rights for women.
Ralph Neas of People for the American Way will lead the charge.
”The evidence is so convincing and so overwhelming,” said Neas, who fought against nominee Robert Bork and Justice Clarence Thomas. ”Without question, [Roberts] was a charter member of the policy team that attempted to dismantle the civil rights regime that had been enforced by Democratic and Republican administrations for decades.”
Other groups will soon follow suit, the Globe reports, including the Leadership Conference for Civil Rights and the Alliance for Justice. One error in the report, however, is the claim that the Alliance had adopted an initial “wait-and-see” approach to the Roberts nomination. As I noted here, Nan Aron was already on record saying that she would oppose, and even urge a filibuster, were Roberts nominated to the Supreme Court. Nonetheless, Aron still pretends that her mind is not made up, telling the Globe:”With an imminent document drop, it behooves us to be reviewing documents and getting a better sense of what his views are before we make the final decision.” Senate Democrats are also now gearing up. Senator Leahy called some of Roberts views “radical,” and Senator Kennedy said some Roberts positions are “beyond the fringe.”

More on Identifying Judicial Activism



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Robby, Gerry, and others have ably blown out of the water the tiresome equation by some academics and pundits that, because “activism” involves, and is in fact defined by, “strking down laws” (federal laws only, apparently; invalidating state laws regulating abortion doesn’t count); it turns out that “conservative” justices like Justice Thomas are more “activist” than Justice Breyer, etc. (In other words, the Lopez case is activism in action, but Stenberg is not).

Here’s how I tend to think about it: Those cases identified by Professor Sunstein and others as revealing “conservative judicial activism” — Lopez, Morrison, etc. — tend to involve the policing of the Constitution’s structural features, and not judicial evaluation of the wisdom of legislatively ratified moral views or policy preferences. One upshot of this is that “conservative judicial activism” does not end debate, or purport to resolve disputes (i.e., nothing in Lopez purported to ask or answer the question whether gun control is wise or constitutionally permissible policy); decisions like Roe and Casey, on the other end, purport to find and enforce constitutional, conversation-stopping answers to difficult moral and other questions. Indeed, as I’m sure we all remember, one of the Casey joint opinion’s key sections was a scolding announcement to pro-lifers that it was time to be quiet and go home. Lopez simply tells us where the discussion should take place, or who gets to decide; Casey makes the decision, and (purports to) terminate(s) that discussion.

Re: Roberts and Recusal



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Law professors Stephen Gillers, David J. Luban, and Steven Lubet have posted their essay presenting their conclusion that Judge Roberts should have recused himself from the Hamdan case. As I expected, their essay does not deal convincingly with the obvious difficulties in their position.

Although Gillers and company assert that it is open-and-shut that Judge Roberts should have recused himself, they nowhere set forth the precise legal proposition that they are advancing. The core of their argument appears to be that Roberts’s recusal is required under the reasoning of two cases from the 1980s, each of which held that a judge was required to recuse himself from a case when he was seeking employment with one of the parties (or with counsel to one of the parties) to the case. But it is far from clear that these cases can be woodenly applied to Roberts and Hamdan. One obvious distinction that Gillers et al. don’t even address: In the cases they cite, the judge’s apparent interest in the particular employment was evident only when contacts were made. By contrast, a reasonable person would have assumed, long before the administration’s recent interviews with Roberts, that he, like lots of other federal judges (especially those said to be on the “short list”), would be interested in, and see himself as a very promising candidate for, elevation to the Supreme Court. In other words, in Roberts’s case it is far from clear that there is any reason to attach special significance to the interviews. Either he should have recused himself from Hamdan even before the interviews (a position that the Gillers crew rejects), or it was proper for him to take part in the case.

Gillers, Luban, and Lubet state that “the public can never know how the [potential employer's] approach may have affected the judge’s thinking.” But that is an impossible and unworkable standard. No one can know how all sorts of extraneous and improper factors (e.g., the desire for public acclaim) might affect judicial thinking. That lack of knowledge does not establish that a judge’s impartiality may reasonably be questioned. The authors state that they believe that Roberts “is a man of integrity who voted [in Hamdan] as he thought the law required.” Why do they not think that the hypothetical reasonable person would make the same judgment?

Gillers and company maintain that their reading would not have required Roberts “to sit out every case involving the government, no matter how routine, while he was being interviewed for the Supreme Court position.” But this seems less a principled concession—how, after all, could the public know whether the interviews “may have affected [Roberts's] thinking” in “routine” cases? and who views his own case as routine?—than an effort to rescue their own position from the unreasonable results that it would produce.

As I previously suggested, if the Gillers position were correct, the White House should issue timely invitations to Justices Stevens, Kennedy, Souter, Ginsburg and Breyer to interview to be the next Chief Justice. Unless their recusal from cases important to the administration would be required in the event of such invitations, it is difficult to see how Roberts should have recused himself from Hamdan.

RE: Stepping in It



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I was drafting my last post as Matt posted his, so I did not mean my post on activism to be a direct response to his. That said, I think it is obvious that I disagree with his definition of “judicial activism” as requiring the striking down of a law. I side with Judge Luttig and what I understand to be Robert and Gerry’s position: that is, that activism is fundamentally replacing legal judgment with will. Like any sin, inaction may get you there just as well as action (although here, upholding a law is an “act” as well; inaction might be failing to address the question at all). Judicial restraint does mitigate in favor of certain canons of interpretation which permit avoiding questions (e.g., constitutional avoidance doctrine, which has fallen out of favor). And the presumption in favor of constitutionality of congressionally enacted legislation suggests that in the case of a true “tie” the legislation should be upheld. But if a case is clear, and the law is profoundly unconstitutional, and the issue is plainly and properly before the court, then how can it be said that a judge is meeting his or her constitutional duty by committing the act of upholding the unconstitutional law? Matt’s suggestion that the issue could be politically remedied does not change the fact that a judge who commits the overt act of upholding a clearly unconstitutional law has abrogated his duty. Matt hints at a narrow view of judicial review, but are we to believe that judges are just there to interpret statutes, and not the Constitution? Suffice it to say that this view was tacitly rejected in American courts even before Marbury. To provide but one example, if Congress were to pass a law prohibiting the publication of National Review Online and that scandalous Bench Memos blog, and the issue were to come before a judge who chose to act by upholding the law not because it comported with his view of the First Amendment, but because he really dislikes Jonah, that decision would be one replacing will for legal judgment, and would therefore constitute activism.

But instead of arguing about this more theoretical question, let’s switch to something more practical. At the end of Matt’s last post, he states: “[e]very current member of the Supreme Court is a serial offender against the proper limits on judicial power, and that includes Scalia and Thomas, who are most certainly ‘judicial activists’ when it comes to the commerce power, state sovereign immunity, and a handful of other issues on which they wish to use judicial power more energetically than the Constitution can justify.” I am particularly interested to see where it is that Matt believes that Scalia and Thomas have abused their judicial power in the Commerce Clause context. Inquiring Bench Memos readers (and, I presume, other writers) want to know.

Apologies



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The Washington Times wants one from Dick Durbin.

The Left’s Sophomoric Definition of Judicial Activism



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I heartily agree with Gerry and Robert’s statements concerning the attempt by some liberal academics and politicians to reinterpret what constitutes “judicial activism.” Among the individuals leading the effort to “define judicial activism down” to the simple invalidation of federal laws is politico-masquerading-as-academic Cass Sunstein. Cass frequently throws out the statistic about more federal laws being overturned by the Rehnquist Court, but one must scrutinize his methodology. First, I have yet to see him offer an explanation of why it is that we should only look to federal laws struck down, rather than state and federal laws. His argument against striking down federal laws is that these laws are popularly enacted, but then, so are state laws–at least the last I checked. Indeed, the gay-rights law at issue in Romer v. Evans was passed by popular referenda—so if it were just a matter of being popularly enacted, then that law should have the Sunstein seal of approval. Of course, allowing state laws into the mix would throw off Sunstein’s claim about the “activist” Rehnaquist Court, because the Warren Court cast aside so many state laws that one loses count. It would also force him to confront cases such as Roe, Roper, Lawrence, and numerous other cases in which the Supreme Court threw out 10s of popularly enacted laws with the stroke of a pen.

But even if the statistics weren’t muddled by the “federal-only” legerdemain, the argument falters on the merits. Gerry and Robert are correct in saying that striking down a federal law does not activism make. Their sentiments mirror those of Judge Luttig, who in a March 9, 2003, article in New York Times Magazine, was quoted as saying: “Remember, it’s sophomoric to think that invalidation of a statute equals judicial activism[.] . . . Judicial activism means deciding a case based on one’s personal predilections, regardless. It might well take the form of sustaining a law that should be stricken.” The fact that liberal academics like Cass Sunstein have taken part in judicial strategy sessions with Democrats intended to block Bush’s judges, after which they proceed to churn out “scholarship” that is as vapid as these arguments concerning judicial activism shows that they are simply partisans—having abandoned anything that would even resemble scholarship.

Re: What Is “Judicial Activism”?



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It may be foolhardy of me to take on the tag team of Robert George and Gerry Bradley, but I can only go halfway with their account of what constitutes “judicial activism.” I have elsewhere defined it simply–perhaps they would say too simply–as the “energetic extension of judicial power without legal or constitutional warrant.” Hence it would never–I’ll repeat that, never–be “judicial activism” for a court to refrain from striking down a statute as unconstitutional. If the law is actually unconstitutional, and it is within the proper scope of federal judicial power to say so with conclusive effect, then we would say that not striking down the law is wrong–that it represents a wrongheaded application of judicial restraint–but how could we ever say that the non-use of judicial power is “judicial activism”?

But this is just what George and Bradley do say, citing a judge “sustaining campaign-finance laws that plainly restrict political speech of the sort protected by the First Amendment” as one who has committed judicial activism. Let us assume that campaign finance laws violate the First Amendment, and that it is the business of the Supreme Court to correct the Congress in these matters. I assume neither of these things, but let’s say so. We could then slam the noninterventionism of the judge who likes these sorts of laws for, say, unwarranted judicial “passivism,” but hardly “judicial activism.”

The first thing we want to know about any constitutional decision is, was it rightly decided? The second is, was it reasoned rightly? (Sometimes you get the first without the second, as in the main opinion in Bush v. Gore.) But when we see a wrongly decided case, or a rightly decided case reasoned badly, then we still don’t necessarily see “judicial activism,” unless the wrongly decided case or badly reasoned opinion resulted in the unwarranted intervention of judicial power to prevent democratic decision-making.

Another way to put this is that our judgment of what judges do should not be binary–that one side or the other in every divided constitutional decision is being “activist,” which is implied by the George-Bradley argument. Sometimes neither side will be activist, if one side wishes properly to strike down a law and the other side improperly wishes not to. But whenever that happens, and a law is wrongly upheld, there is still democratic redress available for those who believe the Constitution was violated. It’s done by winning elections and repealing laws.

Now I’ll really step in it. Every current member of the Supreme Court is a serial offender against the proper limits on judicial power, and that includes Scalia and Thomas, who are most certainly “judicial activists” when it comes to the commerce power, state sovereign immunity, and a handful of other issues on which they wish to use judicial power more energetically than the Constitution can justify.

Now I’ll duck and cover.

Roberts “Well-Qualified”



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As if there were any doubt, the ABA has rated Judge John Roberts “well-qualified” to serve on the U.S. Supreme Court. AP story here.

Roberts “Mayberry-Like” Background



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He’s not a pro-clinic-bomber so he’s a racist? That might be what AP is getting at here

Turley vs. Durbin



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Some three weeks ago, law professor Jonathan Turley breathlessly reported Senator Durbin’s account of a private meeting between Durbin and Judge Roberts in which Durbin supposedly flustered Roberts by asking “what he would do if the law required a ruling that his church considers immoral.” Contrary to Turley’s expectation that Roberts’s supposed answer—that he would recuse himself—would dramatically transform the whole confirmation process, it has instead led only to a petty, nasty dispute between Turley and Durbin. Stephen Spruiell explains here that it appears that Durbin tried to use Turley to float some disinformation about Roberts and then lied about it.

Spruiell thinks Durbin’s disinformation was designed to displease conservatives. Wendy Long makes a more compelling case that it was designed to appeal to anti-Catholic bigotry.

What is “Judicial Activism”?



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Liberals are already claiming that conservative complaints about “judicial activism” are a sham. These claims will increase and intensify as the Roberts hearings draw near. We think that the liberals’ claim rests upon a mistaken idea of what judicial activism is.

Conservatives do say that they don’t want more “judicial activists” on the bench. President Bush has said so himself. The president also says that his kind of justice is Scalia or Thomas, neither a “judicial activist.” Some liberals say “Phooey!” They say that Scalia and Thomas are activists. Why? Because, they say, Scalia and Thomas have voted to strike down laws more often than their assertedly “activist” liberal colleagues.

We have undertaken no survey of justices and their votes to strike down laws. We do not deny the validity of the numbers advanced by liberal critics of the conservatives’ “no-activists” campaign. On the other hand, we don’t concede the numbers. Our point is about a definition: What counts as “judicial activism”?

Whether a judge is a judicial activist doesn’t depend on what liberals say it depends upon: whether (or how often) a judge votes to overturn laws or to sustain them. It depends on whether he resolves cases (one way or the other) on the basis of extra-constitutional norms, principles, tests, or standards. It is a question of where the rule governing decision comes from. If a judge is striking down laws based on “rights” he has allegedly discovered in “penumbras formed by emanations”or in the “liberty clause” of the Fourteenth Amendment, he’s a judicial activist. He is, without constitutional warrant, substituting his personal moral or political judgments for those of the elected representatives of the people, or of the people themselves. If the judge is sustaining campaign-finance laws that plainly restrict political speech of the sort protected by the First Amendment because, let us suppose, he thinks the laws make the political system “fairer” or “more rational,” he is also practicing judicial activism. He is being guided, not by the Constitution, but by his own predilections.

By contrast, a judge who strikes down unconstitutional campaign-finance laws is not practicing judicial activism. He is giving effect to constitutional guarantees; he is not legislating from the bench. He is not making law, save in the inevitable sense in which judges applying norms supplied by other authoritative sources (the people, the legislature) to the facts always make law–interstitially, incrementally.

Hearing Details



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From Specter and Leahy today:

Dear Colleagues:

In order to give advance notice so that you can make your travel plans, the Judiciary Committee hearings on the nomination of Judge John G. Roberts, Jr. for the Supreme Court will begin on Tuesday, September 6th, at 1:30 P.M., in the Caucus Room in 325 Russell. At that time, we will proceed with ten minute opening statements by Committee members to be followed by the oath to be taken by Judge Roberts and his opening statement.

On Wednesday, September 7th, the Committee will reconvene at 9:30 AM in Room 216 of the Hart Senate Office Building for the opening round of questions, which will be thirty minutes in duration. The second round of questioning will be twenty minutes in length, and the duration of such subsequent rounds as are desired will be determined as necessary. The balance of the hearings will be held in Hart 216, except for the closed session, which will take place in our own Committee hearing room.

We look forward to seeing you on September 6th.

Tracking the Left



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Every few days, Committee for Justice issues a “threat matrix” document, chronicling the Left’s evolving attack strategy against John Roberts. The latest version is here. Also, for more judicial information, check out CFJ’s blog and John Roberts’s page.

Memo to Former White House Colleagues



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A former White House staffer in this administration offers this strategic analysis:

The Left is actively planning a vicious character and ideological assault on Judge Roberts. It is keeping most of its powder dry through August when the American public and political establishment are both largely on vacation. The Bush Administration and its allies need to understand that the real target of the coming assault is not merely Roberts but the Reagan legacy, which the Left wants to recharacterize and relitigate. This is a fight conservatives should welcome and can win, but one that can be won only by reassembling the Reagan coalition and fighting on Reagan’s high-minded and openly ideological terms. Here’s hoping Ed Gillespie and the White House team will study the playbooks of the 80’s and bring all of the conservative movement’s resources to bear for the battle ahead.

The Administration must set forth and defend a high level, positive vision of the Reagan legal legacy that Roberts helped establish. Nothing typifies Ronald Reagan more than the images of “Morning in America,” the famous 1984 campaign ad. The Administration must demonstrate why the legal work Roberts was engaged in made Morning in America that much brighter. What Reagan did in the area of civil rights, for instance, was not just defeat quotas and busing–he brought us closer to the noble ideal of a colorblind society. He didn’t just block liberal judges from perverting our criminal justice system, he made our communities safer places to live. And he didn’t just promote prayer in schools, he helped remind us all that America is still One Nation Under God. If Roberts is seen as an architect of that glorious legacy he will be confirmed, and by a large margin. If he is instead falsely depicted as a “handmaiden of the Radical Right” bent on undoing years of “progress” for women, minorities and the less fortunate, he will be defeated or win only by the exercise of brute political force.

That is the challenge, and I desperately hope that conservatives are up for it.

Roberts and Recusal



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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.

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