Ketanji Brown Jackson’s Harvard Ties Raise Recusal Questions in Supreme Court Affirmative Action Case

“If she is not going to recuse herself, she must tell us what her role was” at Harvard, said Sen. John Cornyn (R-Tex.). “I expect her to carefully avoid answering questions. This seems to be the practice.

Jackson, whose term on Harvard’s board of supervisors expires this spring, has not said publicly what she will do. A White House spokesman, Andrew Bates, said this week that she would “follow the highest ethical standards when it comes to recusal.”

Corn if jackson should walking away is not so clear. A a review of the cases in which she chose to recuse herself for eight years as a district court judge shows that she was highly sensitive to concerns about the appearance of bias and sometimes more cautious than required rules, according to ethics experts who note that Jackson appears to have gone out of his way to disqualify himself from handling multiple cases when it was not necessary.

Jackson’s confirmation hearings, scheduled to begin March 21, provide an opportunity, law professor Susan Fortney said, for the judge to “signal the kind of justice it will be,” including on the issue of judicial ethics.

“While some may argue that his position as a member of the supervisory board does not trigger recusal if the board was not involved in decision-making related to the admissions program, a different view is that the impartiality should be seen in the eye of the beholder and that his impartiality could be reasonably questioned because of his connection to the board of directors, ”wrote Fortney, who directs the program for the advancement of legal ethics at Texas A&M University Law School, in an email.

If Jackson recused herself, Fortney said, she would send a message that “she intends to hold herself to high ethical standards and promote confidence in the administration of justice.” This can inspire other judges to consider their own conflicts and impartiality.

While Jackson erred on the side of recusal as a trial court judge, there are additional considerations for Supreme Court justices. When a district court judge steps down due to potential conflicts, other judges take their place. But when one of the nine justices refuses to sit, the Supreme Court finds itself shorthanded, raising the possibility of a stalemate.

Justice Clarence Thomas has come under particular scrutiny in recent years for taking part in cases that intersect with the political work of his wife, Ginni Thomas, a prominent Tory activist. But notably, he disqualified himself from the court’s 1996 review of the Virginia Military Institute’s past admissions policy of excluding women because his son was a student at VMI at the time.

Jackson’s Harvard affiliation is more current. Since 2016, she has been a member of the Supervisory Board, which provides “advice to University leaders on strategic priorities, plans and initiatives”. term ends May 26; the tribunal will hear affirmative action challenges to policies at Harvard and the University of North Carolina during the term beginning in October.

“Six years on the board is a long time, so to quote federal recusal law, his ‘even-handedness’ in the case – that is, in favor of Harvard, given his ties to the council – ‘could reasonably be questioned’ here, meaning disqualification is required,” according to Gabe Roth, executive director of Fix the Court, a nonpartisan group that advocates for reform.

On the other hand, he said, judges “often ignore the law of recusal in favor of what they call a ‘duty to sit’ – that in closed cases, the need to keep the court in full with nine judges outweighs any perceived bias.”

“Balancing those factors, I think it would be prudent for her to recuse herself,” Roth concluded.

Jackson is a graduate of Harvard Law School and Harvard College, where she met her husband and regularly returned to campus to teach a law school workshop, serve on alumni panels, and as a speaker. with student organizations. She was an elected trustee of the alumni association for three years; longtime member of the Harvard Club of DC, through which she interviewed college applicants; and is a member of the Harvard Black Alumni Society. Her youngest daughter will be a freshman at Harvard in the fall.

The judge, who now sits on the United States Court of Appeals for the DC Circuit, is based on the first name of university president Lawrence S. Bacow, whom she interviewed last October as part of a an alumni event. When the Supreme Court agreed to review Harvard’s race-conscious admissions policies in January, it issued a statement saying that accepting the case “jeopardizes 40 years of legal precedent granting colleges and universities the freedom and flexibility to create diverse campus communities”.

Sen. Josh Hawley (R-Mo.), said Jackson’s involvement with Harvard seems “quite deep and meaningful.”

“I think the question of recusal is a very fair question,” he said. “I imagine it’s going to happen and I’d love to hear the answer myself.”

Sen. Thom Tillis (RN.C.), citing the “unique circumstances” surrounding his Harvard affiliation, said he planned to ask Jackson if she would step down unless someone more senior than him did. within the committee do it first.

“It’s even more than just being out there publicly in a position,” he said.

A key question in assessing whether Jackson should participate in the case is whether she played a role in forming the contested admissions policy, according to New York University law professor Stephen Gillers.

The board Jackson sits on was named in the original lawsuit in 2014, but voted out as a party the following year, before Jackson was elected. It is separate from the smaller board of directors of Harvard Corporation, which has fiduciary responsibility.

“Theoretically, she could be so associated with the welfare of the school through her extensive work for the school and her dealings with school governance that we would say her impartiality is reasonably questionable,” said Gilles. But, he added, participating in school-sponsored events and panels as many judges and magistrates do, “doesn’t tip the scales for me.

“There must be such a degree of identification with the welfare of the institution that a reasonable person would question the judge’s impartiality in a case in which the university is a party.”

A Harvard spokesperson declined to comment.

Among the more than 2,000 pages Jackson submitted to the Senate Judiciary Committee ahead of her confirmation hearings is a list of the dozen or so cases over eight years in which she took it upon herself to recuse herself. Of these, Gillers noted several in which he said recusal was unnecessary.

In 2014, she disqualified herself from a case filed against George Washington University because she was an adjunct professor at the law school. In two civil cases in 2015, she recused because her brother-in-law was a partner at a law firm that represented defendants in cases involving potential damages. Jackson also declined to preside over a lawsuit filed against the insurance plan offered to employees of MedStar Georgetown University Hospital, where her husband is a surgeon.

In a pair of separate cases, she recused herself because of her role on Harvard’s board of trustees, even though the university itself was not a party to the lawsuits. She declined in 2016 to get involved in a challenge to the Department of Education’s sexual assault guidelines for colleges and universities because the board she served on was “weighing its own potential response to those guidelines.” Two years later, she withdrew from resolving a lawsuit brought by a Harvard research librarian against the Environmental Protection Agency after the government failed to respond to a request for public records .

In either case, Jackson wrote in his Senate questionnaire, “I have determined that my impartiality is reasonably questionable and that this problem is incurable.”

Gillers said Jackson’s past practice underscores that “she was particularly susceptible to the perception of bias.” Even so, he said there are other considerations for a Supreme Court justice, who is just one of nine.

“I think it’s perfectly legitimate to say, ‘If it’s close enough, I’ll recuse myself as a lower court judge,’ and then on the same facts to the Supreme Court to say, ‘The harm caused in court is too big to do the same’. .’ ”

In the Supreme Court case, it’s unclear whether Jackson’s participation would be a deciding factor in the outcome. The slim majority that in 2016 supported the limited use of race in school admissions has been replaced by a more conservative bloc of six, including three nominees for President Donald Trump. The Trump administration has backed those who challenge Harvard’s policies as unconstitutional. The Biden administration has urged the court not to accept the case.

Jackson, who would go down in history as the first black woman on the court, has previously been asked about her views on affirmative action. As a candidate to join Harvard’s board of trustees in 2016, she declined to comment on the school’s admissions policy in a campaign inquiry, citing her role as a federal judge who may one day have to take a stand on the controversial issue.

In response, Jackson said she would respect legal precedent and wrote, “I have no particular idea of ​​the future need or the ramifications of the continued use of race in admissions.”

Robert Barnes contributed to this report.


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