The Big Question of Ketanji Brown Jackson’s Hearing Recusal

The statement is certainly an acknowledgment of reality, given that Democrats have the required 50 votes to confirm Jackson if they vote in unison. But it could also be read as a warning to Republicans not to get overzealous in trying to fight the nomination. Some Republicans have gone further than other members of their party seem comfortable with, including casting Jackson as an affirmative action hire and misleadingly attacking his record on child pornography cases. . And there’s precedent for appointments that won’t affect the balance of the court — like this one won’t — being somewhat sleepy business.

But even if Republicans don’t generally try hard to thwart Jackson’s nomination, what happens this week will be important. And pretty high on the list of key issues is what she says about her recusal in a key case involving the same issue Republicans have attacked her for: affirmative action.

The Post’s Seung Min Kim recently recapped the very valid questions of whether Jackson will recuse himself from a huge upcoming case involving affirmative action policies at Harvard, where Jackson sits on the school’s board of trustees. And it’s not just Republicans who are signaling that a recusal might be appropriate. For those Republicans, however, the exercise could also serve as a way to address questions about affirmative action without being seen as personally attacking Jackson or accusing her of being an affirmative action hire herself.

Whether they will succeed is less certain. And above the back and forth will loom more and more questions about a conservative judge’s decision not to recuse himself from Jan. 6-related cases, despite his own family ties to efforts to overturn the election.

As The Post’s story noted, there is precedent for Supreme Court justices to recuse themselves from cases involving schools they are affiliated with or cases in which they have personal ties, and Jackson she herself did so as a lower court judge.

  • In the 1990s, Clarence Thomas recused himself from a case involving the Virginia Military Institute because his son attended school there.
  • In 2020, Amy Coney Barrett pledged to recuse herself from cases involving the University of Notre Dame as a party, since she had worked there as a law professor.
  • Judges have often recused themselves in cases involving people to whom they are related by family or business, as well as by stock ownership.
  • As a district court judge, Jackson recused herself from a case involving George Washington University (where she served as an adjunct professor) and a case involving MedStar Georgetown University Hospital (where her husband was a surgeon ). She also withdrew from a case involving a Harvard research librarian, as well as a sexual assault guidelines case that did not directly involve Harvard, as the school was “evaluating its own response.” potential to these guidelines”.

That said, Supreme Court recusal decisions — which are at the discretion of the justices themselves — sometimes imply a higher bar. This is partly because, unlike at the district court level, there is no other judge to replace them. One of the nine judges recusing himself means the decision could result in a 4-4 stalemate.

Unlike Barrett, who used her questionnaire to say she would recuse herself from cases involving Notre Dame, Jackson’s questionnaire did not detail her approach to Harvard-related cases. That same questionnaire asked her if she would use the same standards for recusal as in lower courts – which would be important given her recusals in cases involving Harvard and adjacent – ​​and she stopped short of saying that the same standards would be used.

Instead, she said, “If confirmed in the Supreme Court, I will continue my current practice of using a recusal list to identify and avoid potential conflicts.” Not said: whether this recusal list would be the same and would be applied in the same way.

Recusals in the Supreme Court are much more common than people realize; the nonpartisan reform group Fix the Court has in recent years kept a tally of recusals and filled in the details when the judges fail to explain them. In recent times, recusals have been at 149 at the low point and 248 at the high point – during the 2020-21 term. (There have already been 118 in the current term.)

But while recusals are common, they’re usually tied to a few issues: having been involved in the case as a lower court judge or in some other capacity (like Elena Kagan as solicitor general under the administration Obama), or possess an action that could be construed as a conflict of interest. Challenges for personal or family ties – the relevant norm here – are much less common; the vast majority of recent years involve outgoing Judge Stephen G. Breyer recused himself from cases where his brother, a California District Court judge, had presided earlier.

Such recusals are also unusual in huge cases like Harvard’s affirmative action case, and Jackson’s recusal would be very significant given the significant issues at hand. While the Liberals are outnumbered from the field 6-3 and his absence could mean the dissenting side is only slightly smaller as a result, his absence could impact the scope of the decision, and that could prevent the left flank of the court from choosing off Chief Justice John G. Roberts Jr. and/or another judge, as has been the case in some major cases.

The GOP’s push for Jackson to detail her criteria for recusal and whether she would recuse herself in this specific case will also occur against the backdrop of increasing recusal issues involving one of their favorite justices: Thomas. In recent weeks, evidence has piled up about his wife, conservative activist Ginni Thomas, and her role in both efforts to challenge the 2020 election results and her criticism of the January 6 committee investigating the case. (More recently, it was learned that she attended the Jan. 6 “Stop the Steal” rally that preceded the uprising.) This did not cause Thomas to recuse himself from such instances, and in fact, he was recently the only judge to vote in favor of blocking the committee’s access to former President Donald Trump’s White House archives.

As in this case, the question is how direct the connection is to the issue at hand and whether it meets the general standards for recusal, namely that a person’s impartiality could reasonably be questioned. In Thomas’ case – which seems more or less unprecedented – he decided that his wife’s advocacy for the causes involved fell short of that standard. In Jackson’s case, it’s likely that GOP senators will determine whether she played a role in Harvard’s affirmative action policy.

Bringing up Thomas’ case will be somewhat risky for Democrats at this time, with news over the weekend that he was hospitalized with an infection. But since recusal issues are front and center this week, you can bet you’ll be hearing more than Jackson’s dilemma.


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