Bench Memos

Defense of Gonzales on Recusal

My correspondent whose views on Gonzales’s recusal obligations I disputed in my NRO essay today offers these additional comments:

Your response certainly narrows the issue in dispute. I think we agree that Attorney General Gonzales is basically a conservative in good standing, with four years of very active and able duty to his credit. That means he doesn’t deserve the “borking” treatment he’s receiving from some on the Right about his fidelity to Constitutional first principles. I also think we agree that it would be a good idea for White House vetters to inquire about the extent of Gonzales’ recusal obligations to determine how they might impact his ability to “do the job” of a Supreme Court Justice. I doubt that they’ll conclude that he can’t do the job. You and Andrew McCarthy are convinced he can’t do the job, at least with respect to many important matters related to the War on Terror and the ongoing Kulturkampf.

Let me try once more to allay your fears. First, you are both still embracing too broad a view of 28 USC 455. You’re right that the statute encompasses two different sets of recusal obligations (in subsections a and b), but they are related, with subsection (a) being more or less a catch-all to cover issues not specifically outlined in subsection (b). And both subsections must be viewed in light of the changes in the law in 1974, which didn’t “toughen” the law as much as you seem to think.

Take, for instance, the provision you referred to requiring recusal where a Justice “has been of counsel … or is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him” to take part in a proceeding. We both agree that the new provision replaces the subjective “in his opinion” standard with an objective standard. That’s tougher. But the new provision also deletes the previous “of counsel” language, which means that a Justice no longer has to recuse in a case simply because his name may have been on a brief as a formality. That’s a liberalization of the law designed to allow former government officials to participate in more rather than fewer matters.

In addition, the post-1974 law doesn’t impose a blanket prohibition on Justices sitting on cases involving laws they may have supported or even drafted. The law on this point is spelled out in a scholarly 2001 analysis by Judge Danny Boggs in a Sixth Circuit case called Buell v. Mitchell, which I commend to you for further review. In that opinion, Judge Boggs notes that former Supreme Court Justices Vinson, Burton and Black “routinely sat on cases involving legislation passed while they were members of Congress.” And while it is correct that some of the current recusal language may not have been in effect during the tenure of past Justices, non-legal ethical canons in effect at the time imposed obligations that are largely unchanged today.

I could also try to allay your fears with respect to some of the specific cases you’ve mentioned, such as Gonzales v. Oregon, where the Attorney General is merely a nominal party. But the truth is none of us know precisely what role Gonzales has played in these matters, or whether his vote would most likely be critical to the outcome of an appeal. We simply ought to trust the President to sort the issue out.

We also ought to take the long view. A Supreme Court appointment is for life, and the opportunity for fundamental conservative gains on the Court is still at least two or more appointees away. If that opportunity becomes a reality, Gonzales is likely to be a leader amongst his peers.

The long view is also relevant to the issue of appointing a conservative Hispanic to the Court. Like the appointment of Justice Thomas, the appointment of an able, accomplished Hispanic to a position of national prominence, in which he will become a visible exponent, through decisions and speeches, of a conservative jurisprudence exposes the falsehood that there is only “one way” for an educated minority to think about the legal system and politics generally. This is not a dispositive issue, of course, and I am not suggesting that it ought to take priority over other considerations. But it is something that our President and fellow conservatives ought to bear in mind.

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