A Shaky Ethics Charge

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By Ronald D. Rotunda
Tuesday, September 6, 2005

Does John Roberts have an ethics problem?

Three ethics professors argue that Roberts, whom President Bush has just nominated to be chief justice, should have disqualified himself from a case he helped decide earlier this year while serving as a judge on the U.S. Court of Appeals for the D.C. Circuit.

The case, Hamdan v. Rumsfeld, which concerns a key issue in the administration's war on terrorism, may be headed for the Supreme Court, and at the time of the appeals court ruling, Roberts was being considered for a vacancy on the high court, though it did not yet exist.

The three professors -- Stephen Gillers of New York University, David J. Luban of Georgetown University and Steven Lubet of Northwestern University -- say that in not disqualifying himself, Roberts violated the "appearance of impartiality." If true, it may become a prominent issue because it offers one of the few arguments against Roberts. In the case at issue, the appeals court upheld the constitutionality of the administration's plan to use military commissions to try terrorist suspects.

Just a short time ago, Gillers said that he "saw no problem" with the fact that Bush met with Roberts about the Supreme Court vacancy on July 15, the same day the appeals court ruled 3 to 0 in Bush's favor in Hamdan. But Gillers said he changed his mind after Roberts disclosed the White House interviews in his Senate questionnaire. What seems to be crucial is that Attorney General Alberto Gonzales spoke to Roberts on April 1, six days before oral arguments in the Hamdan case.

Gillers and his colleagues conclude that Roberts violated a federal statute that requires what Gillers calls "an appearance of impartiality." The federal statute doesn't put it that way; it says that the judge should recuse himself if his "impartiality might reasonably be questioned." The case law says the issue should be considered from the perspective of a reasonable, objective lawyer fully informed of the facts.

The American Bar Association says the "appearance of impartiality" standard is "question-begging" and leads to "ad hominem attacks."

We sometimes think, loosely, that ethics are good and that more is better than less. But "more" is not better if it exacts higher costs, measured in vague rules that impose unnecessary disqualifications.

Gillers's main source is Scott v. United States , a 1989 case in which a criminal trial judge in the District was discussing a managerial position with the Justice Department while the U.S. attorney's office was prosecuting a criminal case before the judge. Gillers says the judge acted improperly by presiding at the trial during his employment negotiations.

The problem with Gillers's reliance on the Scott case is that he leaves out what the case really said: "By December 23, 1984, when he had decided to accept the position in the Executive Office for United States Attorneys, the judge had a duty to recuse himself from Scott's case."

The Scott case does not support Gillers's argument; it undermines it. What Scott says, at most, is that Roberts had no obligation to withdraw from a case in which the government is a party before he was offered and decided to accept the position. That date could not be before the vacancy existed; in fact, it could not be before July 15, when he met Bush for the first time. By that time, the Hamdan case had already been decided.

Judges are offered other jobs all the time. A Supreme Court justice may become chief justice, or, like Justice Arthur Goldberg, U.S. ambassador to the United Nations. Appeals court judges may become Cabinet officers. Trial judges may become appellate judges. Gillers's stance would require judges to recuse themselves in any case in which the federal government is a party.

Gillers's response is that the Hamdan case was "hotly contested." I have never found any case to be "coldly contested," or even "warmly contested."

Do we really want to give the president or attorney general the power to force recusal of one or more judges on a panel simply by asking the judge if he might be interested in a different position that is not yet open but that eventually will be? Should Judge (later Justice) Ruth Bader Ginsburg have recused herself from any case involving the federal government from the time that Justice Byron White announced his resignation until the time President Bill Clinton announced her appointment? What of Judge (later Justice) Stephen Breyer, who was not nominated until a year after his initial interview with Clinton?

The president is not the only person responsible for court appointments. In many states, judicial selection committees present choices to the president. The case law (which Gillers does not cite) has uniformly rejected motions for disqualifying judges from cases in which members of the selection committees are directly involved.

Conflict-of-interest charges should not be raised lightly, and historical precedents and case law show the allegations against Roberts are unfounded.

The writer is a law professor at George Mason University; he rejoined the faculty in June after working at the Defense Department and was not assigned to the Hamdan case. This article is based on an ethics opinion he wrote at the request of Senate Judiciary Committee Chairman Arlen Specter (R-Pa.).


© 2005 The Washington Post Company

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