Wednesday, March 23, 2022

Formal Conflicts of Interest Versus Bias: Ketanji Brown Jackson Edition

 by Michael C. Dorf

I begin with a confession. The press of other obligations and the generally farcical nature of SCOTUS confirmation hearings have led me to pay attention to the current hearing for Judge Jackson only intermittently, mostly contenting myself with summaries and highlights. Yesterday I did manage to hear and tweet about the incompetent questioning of Judge Jackson by Senators Feinstein and Cornyn. I also listened to Senator Cruz fret that Judge Jackson's service as a member of the Board of Trustees of Georgetown Day School brands her a radical because the school--according to Cruz--teaches critical race theory to young children.

That was enough for me for one day. I'll probably be unable to prevent myself from listening to more of the hearing today, but I'll take long breaks and will surely miss something. No worries, though. In the unlikely event that Judge Jackson yells, cries, or professes fondness for any category of alcoholic beverage, I'm sure I'll be able to watch it on YouTube and/or see a barely fictionalized version on Saturday Night Live.  Given my view from 40,000 feet, I'll focus today on a relatively minor issue as a window into the larger question of the appearance versus the reality of bias.

One question that has been raised is whether, if confirmed, Justice Jackson will recuse herself from the pending challenge to Harvard College's admissions policies. The racist subtext of the question (or, in the case of the likes of Tucker Carlson, the explicit racism) is that as an African American she cannot be neutral in evaluating race-based affirmative action. That's a racist view because it treats Judge Jackson as having a race while assuming that white people don't have a race and so they can be neutral. However, to state the obvious, if African Americans cannot be neutral with regard to race because of their race, then no one can be neutral.

To be sure, the formal reason for seeking recusal is that, when she's not busily ensuring that young white kids feel guilty about their complicity in slavery and systemic racism (as Senator Cruz sees it), Judge Jackson sits on the Board of Overseers of Harvard University. Lesson one: No good deed goes unpunished; no-doubt unpaid service on the board of an educational institution shall henceforth be off-limits to anyone who might ever need Senate confirmation.

Lesson two, however, is more serious. A judge or justice has reason to recuse from a case in which a corporation in which they own individual stocks (as opposed to a broad-based mutual fund or the like); a fortiori, a judge or justice should not hear a case involving a firm on whose corporate board they sit; and sitting on the board of a non-profit is sufficiently similar to sitting on the board of a profit-seeking corporation. Thus, I actually agree that, if confirmed, Justice Jackson's service on Harvard's Board of Overseers creates at least the appearance of impropriety. There is no formal code of judicial ethics applicable to the Supreme Court (amazingly), but sound practice would seem to require recusal--except that the issue shouldn't arise, because Judge Jackson's term on the Harvard Board expires before she will take the oath as a Justice.

But wait, you say. Why doesn't the fact that Judge/Justice Jackson was on the Harvard Board call for recusal? The answer is that such a requirement would be far too sweeping. After all, if past ties alone suffice to require recusal, then not only Justice Jackson, but also the following Justices would need to recuse from the Harvard case: Chief Justice Roberts--like Jackson, holding degrees from Harvard College and Harvard Law School, where he was managing editor of the Harvard Law Review; Elena Kagan, also a Harvard Law School alum and, for goodness sake, the former Dean of Harvard Law School; and Neil Gorsuch, yet another Harvard Law School alum. Were he not retiring, so would Stephen Breyer, an alum and former faculty member at Harvard Law School.

No informed observer thinks that institutional affiliation is nearly as good a predictor of how a Justice will vote in a case as overall ideological outlook. Suppose that Princeton, rather than Harvard, were the respondent in the pending SCOTUS case. And suppose that Justice Alito, instead of having been a member of the reactionary Concerned Alumni of Princeton, were a current member of the Princeton Board of Trustees. Would that lead any informed observer to think that Justice Alito would therefore be inclined to uphold Princeton's admissions policy if challenged as impermissibly race-based? Of course not.

So in both the actual case of Judge/Justice Jackson and my hypothetical case involving Princeton, active service on the board of a party to the Court is disqualifying only because it's more sensible to have an over-inclusive rule that applies to all such institutional service than to try to sort out when such service makes an actual difference. If Justice Jackson were to continue serving on the Harvard Board into her time on the Supreme Court, that would create the appearance, not the reality, of a conflict of interest, but that appearance would be enough to warrant recusal. However, because she won't continue in her Harvard role, there isn't even the appearance of bias (to an informed observer, which is what counts, as Justice Scalia correctly noted in his 2004 discussion of his non-recusal from a case involving his hunting buddy, VP Cheney).

Sometimes the appearance of bias is simply overwhelming, even if it has no practical impact. I doubt very much that Virginia Thomas's highly partisan activities move Justice Thomas further to the right than he would be were she not engaging in them. Nor do we need some general rule limiting the activities of spouses of judges and justices.

For example, the late Judge Stephen Reinhardt on the Ninth Circuit (for whom I clerked) was married to the late Ramona Ripston, who was the longtime executive director of the ACLU of Southern California. Judge Reinhardt recused himself from cases in which that organization was a party, even though his druthers were already highly civil libertarian. It would have been unfair to ask (and given the composition of the federal judiciary, would have disparately impacted women) that Ripston give up her job.

The problem in the case of Virginia Thomas is not that she has a high-powered career on issues of public policy that sometimes overlap with the work of the judiciary. The problem is the partisan zeal with which she pursues those issues.

Finally, I want to be clear that in saying that past service to or employment by a party to a case oughtn't to be automatic grounds for recusal, I do not mean to deny that there are some former positions that should lead to recusal. The most obvious is prior participation in a case by a jurist elevated from one court to another or, as with Justice Kagan, when a judge or justice worked on the very case before the court when she was a lawyer. It's true that a lower court judge might have felt bound by precedent they can now overturn as a justice, so having previously participated doesn't create an unshakable bias. Likewise, one can work for a client and then see the case differently as a jurist. Still, virtually every lawyer knows that when you work on a case, even if you are clear-eyed enough to see how you could lose, you come to identify with the arguments you make--so it's harder to approach the very same case without strong druthers. Those druthers seem different in kind from ideological druthers, even if the latter are both more common and often stronger.

But not to put too fine a point on it, former largely ceremonial service on the board of one's alma mater is--or at least should be--a non-issue.