As I have previously discussed, Gillers and his two co-authors fail to deal adequately with the many obvious difficulties in their position that Judge Roberts should have recused himself from the Hamdan case. Indeed, they do not even address the possibility that elevation of a judge within the federal judicial system might be materially different from a judge’s seeking employment outside that system. I will not repeat my previous observations here but would like to highlight two additional problems with the Gillers position:
1. If, as Gillers maintains, the realistic prospect of elevation should have required Roberts to recuse himself from cases of importance to the administration, why wouldn’t the fact of elevation likewise require ongoing recusal? In other words, why wouldn’t the Gillers position require that Roberts, once confirmed and appointed to the Supreme Court, sit out all cases of importance to the president, to whom he would presumably be indebted for his appointment?
To illustrate the point: Let’s assume that a federal judge was negotiating a book contract with a publisher. It would seem uncontroversial that the judge would recuse himself from any case involving the publisher during the negotiations. But let’s move forward in time and assume that the negotiations resulted in a contract. Obviously the judge’s recusal obligation would extend to the period covered by the contract and presumably for at least a reasonable time after. In other words, where the prospect of a benefit requires recusal, the actual conferral of that benefit does as well.
The logical corollary to the Gillers position–that Roberts would have to recuse himself as a justice from cases of importance to this administration–is belied by 200-plus years of American history. Does Gillers maintain that this unbroken practice is wrong? If not, it would appear to follow as a matter of logic that his underlying position must be wrong.
2. If, as Gillers maintains, the fact of an interview required Roberts’s recusal in Hamdan, is it Gillers’s position that all the other federal judges who interviewed for the Supreme Court are also required to recuse themselves from cases of importance to the administration? Presumably these judges remain on the short list for the next vacancy. It is of course true that no additional resignations have been announced. But O’Connor had not announced her resignation at the time Roberts was interviewed, so that point does not distinguish Roberts’s situation in Hamdan from that of the other judges who interviewed.