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.