Judicial Jeopardy

Published July 8, 2005

National Review Online

As I have previously outlined, if Alberto Gonzales were appointed to the Supreme Court in the near future, he would likely have to recuse himself from virtually all the cases that the administration considers of greatest importance to the nation. His recusal obligations would have devastating consequences for the administration’s prospects on the hotly divided issues that these cases present. In essence, the unique and invaluable role that Gonzales has played and continues to play as the president’s top lawyer is precisely why, notwithstanding his excellent qualifications, it would be worse than senseless for the president to appoint him to any imminent vacancy.

Gonzales’s recusal would, for example, place in serious jeopardy cases that present issues crucial to national security and the war on terror, as Andy McCarthy has explained. On the domestic side, Gonzales’s recusal would almost surely result in the invalidation of the federal partial-birth abortion, a key part of President Bush’s effort to build a culture of life in this country. And Gonzales, it appears, would be required to recuse himself from the three most important cases already on the Court’s docket for next term, which involve parental notification for abortion, physician-assisted suicide, and the clash between universities and military recruiters over the military’s policy on homosexuals. These are just some of the many major cases of special interest to the administration in which a Justice Gonzales would be required to recuse himself in coming years.

A lawyer who worked for Judge Gonzales in the White House Counsel’s office and who strongly advocates his candidacy for the Supreme Court disputes my assessment of the importance of the recusal issue. Here’s that lawyer’s full account, followed by my explanation why that account does not alter my assessment:

I’ve had a chance now to consider your recent posts about Attorney General Gonzales, and am not yet persuaded that it would be, as you argue, “folly” for President Bush to appoint him to fill Justice O’Connor’s seat.

As an initial matter, I think you’d have to concede that Gonzales would be, in most respects, a very intriguing nominee. His conservative commitment has been demonstrated in a host of tangible ways over the course of the last four years. He has overseen the selection and confirmation of an extraordinary crop of court of appeals judges — including Bill Pryor, Edith Clement, Michael McConnell, and John Roberts — and his support for each of them has been unwavering in the face of extraordinary criticism from the Left. He’s selected committed young conservative lawyers to serve on his own staff and has consistently promoted conservatives for top legal jobs throughout the Administration. And, with the possible exception of his advice in the affirmative action cases, Gonzales has given the President reliably conservative legal advice about a wide range of important issues. (He even courageously advised the President to reduce the American Bar Association’s role in the judicial nominating process!)

In addition, Gonzales is young and personable, and has already been through the crucible of a hostile confirmation hearing. And, I’ll acknowledge it, he’s Hispanic and his appointment would be both historic and politically significant within the Nation’s fastest growing minority community.

So the “folly” of seriously considering him for the Supreme Court surely must rest firmly on the recusal obligations you’ve been writing about. Obligations that you suggest would “likely” force Gonzales “to recuse himself from virtually every case of importance to the administration.”

Fortunately, I don’t think those obligations are quite as onerous as your posts might suggest. You are right, of course, to say that 28 U.S.C. 455 requires a Justice to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” For lawyers coming out of government service this includes proceedings where the lawyer “participated” as “counsel, adviser or material witness” or “expressed an opinion concerning the merits of the particular case in controversy.” This restriction is less stringent than those that apply to prior private employment — a lawyer may be obliged to recuse in that context based on the mere fact that another lawyer in his office served as counsel concerning a matter. Thus when it comes to government service, the issue appears to be more personal — was the lawyer himself involved materially in the proceeding. As far as I can tell from looking at the caselaw and commentary, this means Gonzales wouldn’t be obligated to recuse simply because the buck nominally stopped with him as the President’s top lawyer at the White House or the Justice Department. Recusal obligations arise only when the lawyer actually and actively “participated” in a specific proceeding or particular case. You’ve also rightly noted that the federal recusal law was toughened in 1974 — but that change simply shifted the analysis of recusal obligations from a standard based on a judge’s subjective opinion of his obligations to an objective standard.

Significantly, my more narrow take on 28 U.S.C. 455 isn’t just legalistic parsing that Gonzales would be forced to disregard under pressure to “resolve any doubts in favor of recusal.” As Justice Scalia reminded us last year in the midst of the controversy over his duck hunting trip with the Vice President, when it comes to the Supreme Court there is no presumption in favor of recusal, because “even one unnecessary recusal impairs the functioning of the Court” (citing the Supreme Court’s 1993 Statement of Recusal Policy). Gonzales would therefore have an obligation to hear every case he possibly could as a new Justice, and would only be in a position to recuse in matters where the strict legal standard is met.

This is not to say that Gonzales would have no recusal obligations as a Justice on the Court coming from the top Justice Department job and before that the White House Counsel’s Office. But those obligations would, I suspect, be far more manageable than you fear. Justice Jackson served as Franklin Roosevelt’s Attorney General before he was named to the Supreme Court, where he actively participated in the review of a host of New Deal issues. Justices Murphy, Stone and Clark all served as Attorney General before going on the Court. Justice Marshall served as U.S. Solicitor General, and as you know, Chief Justice Rehnquist served as an Assistant Attorney General prior to serving on the Court. For the most part, these men all had distinguished careers on the Court and affected the course of our jurisprudence in meaningful ways, often long after their prior service in the Executive Branch.

There may indeed be reasons for the President to select someone other than Gonzales for the Court — but based on what I’ve observed about the law so far, I just don’t think “recusal risk” is a serious obstacle to his selection.

As I hope I have made sufficiently clear, I certainly do not dispute the commentor’s praise of Gonzales’s performance as White House Counsel and Attorney General. But I don’t agree with his reading of section 455.

Section 455 has two distinct substantive provisions that are relevant here. Subsection 455(a) provides that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Subsection 455(b) provides a set of additional circumstances in which a justice “shall also disqualify himself.” In particular, subsection 455(b)(3) requires that a justice “disqualify himself … [w]here he has served in government employment and in such capacity participated as counsel [or] adviser … concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

In maintaining that material involvement in a “proceeding” is required for recusal under section 455, the commenter conflates subsection 455(b)(3), which does have such a requirement, with subsection 455(a), which does not. As a result, it appears, the commenter seems to think that a person who has advocated a specific policy and/or advised as to its lawfulness but who, say, leaves government service before litigation commences over that policy could take part as a justice in deciding the question of the policy’s lawfulness without violating subsection 455(a). Such a conclusion seems contrary to elementary principles of impartiality. Unless the commenter can provide authority for such a bizarre result — and he provides none — I see no justification for importing into subsection 455(a) the requirement of prior involvement in a “proceeding.”

In any event, I think it clear that Gonzales has extraordinary recusal baggage under subsection 455(b)(3) that derives from his material involvement in proceedings. Indeed, the specific instances that Andy McCarthy and I have raised all would appear almost certainly to fall under this subsection. Yet the commenter offers no argument why Gonzales might be able to take part in these or similar cases.

As I have said, it is in theory possible that a full understanding of the facts in any particular case might lead to the conclusion that recusal is not necessary. But given Gonzales’s jobs, that seems extremely unlikely in the specific instances that I have identified (as well as in other cases of great interest to the administration), as it would basically mean that Gonzales wasn’t doing what his job would appear to have required of him.

It’s also worth noting that the commenter is mistaken in asserting that the only respect in which the 1974 amendments toughened section 455 was in adding the requirement that a justice recuse himself in any proceeding “in which his impartiality might reasonably be questioned.” In fact, prior to 1974, section 455 provided (in relevant respects) for recusal only 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. The specific mandatory recusal language of section 455(b)(3), which I quote above, was added in 1974. So examples of justices who entered service in the 1940s and had previous executive-branch experience would provide zero comfort. (Moreover, for what it’s worth, the recusal statute did not apply to justices before 1948, though there’s some evidence that justices applied to themselves before then the same looser standard that applied to lower-court judges.)

If Gonzales is going to be considered as a candidate for the Supreme Court, it is essential, at the very least, that the key folks in the White House Counsel’s office (including the ethics expert) have an exhaustive discussion with him in which they establish, with as much clarity as possible, the likely extent of his recusal obligations, including with respect to specific cases that are already before the Court or that are likely to come before it. It is, of course, possible that this discussion has already occurred, but I see no reason to think that it has.

If the president is going to make an informed decision about who (to use his phrase) “can do the job,” he needs to know whether one of the candidates suffers from uniquely severe recusal obligations that would prevent him from doing the job in — and that would thereby put in serious jeopardy — the very cases that the administration deems of greatest importance to the nation.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog on judicial nominations.

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