Monday, March 27

Analysis | The big recusal question at Ketanji Brown Jackson’s hearing


The statement is certainly an acknowledgment of reality, given Democrats have the requisite 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 others in their party seem to be comfortable with, including by pitching Jackson as an affirmative action hire and misleadingly going after her record on child pornography cases. And there is precedent for nominations that won’t affect the balance of the court — as this one won’t — being somewhat sleepy affairs.

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

The Washington Post’s Seung Min Kim and Ann E. Marimow recently recapped the very valid questions over whether Jackson will recuse herself from a huge upcoming case involving affirmative action policies at Harvard, where Jackson serves on the school’s governing board. And it’s not just Republicans signaling that a recusal might be appropriate. For those Republicans, though, the exercise could double as a way to get at questions about affirmative action without being seen as attacking Jackson personally or accusing her of being an affirmative action hire herself.

As for whether they’ll get anywhere with it, that is less certain. And looming over the back-and-forths will be increasing questions about a conservative justice’s decision not to recuse himself from Jan. 6-related cases, despite his own familial ties to the effort to overturn the election.

As The Post’s story noted, there is precedent for Supreme Court justices recusing themselves from cases involving schools they are affiliated with or cases in which they have personal ties, and Jackson herself has done this as a lower-court judge.

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  • In the 1990s, Clarence Thomas recused himself from a case involving Virginia Military Institute because his son attended school there.
  • In 2020, Amy Coney Barrett committed to recusing herself from cases involving the University of Notre Dame as a party, since she had worked as a law professor there.
  • Justices have often recused themselves from cases involving those they are tied to through family or business, as well as through 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 from a case involving MedStar Georgetown University Hospital (where her husband was a surgeon). She also recused herself from a case involving a Harvard research librarian, as well as from a case on sexual assault guidelines that didn’t directly involve Harvard, because the school “was evaluating its own potential response to those guidelines.”

All of that said, recusal decisions for the Supreme Court — which are at the discretion of the justices — sometimes involve a higher bar. That’s in part because, unlike at the district court level, there isn’t another judge to take their place. One of nine justices recusing themselves means the decision could result in a 4-4 deadlock.

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

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She instead said, “If confirmed to the Supreme Court, I will continue my present practice of using a recusal list to identify and avoid potential conflicts.” Left unsaid: whether that recusal list would be the same and would be applied in the same way.

Supreme Court recusals are much more common than people might realize; the nonpartisan reform group Fix the Court has in recent years kept a running tally of recusals and has filled in the details when the justices don’t explain them. In recent terms, recusals have numbered between 149 at the low point and 248 at the high point — in the 2020-2021 term. (There have already been 118 in the current term.)

But while recusals are common, they are generally attributed to the same couple of issues: having been involved in the case as a lower-court judge or in another capacity (such as Elena Kagan serving as solicitor general during the Obama administration), or owning a stock that could be understood as a conflict of interest. Recusals for personal or family ties — the relevant standard here — are far less common; the vast majority in recent years involve outgoing Justice Stephen G. Breyer recusing himself from cases where his brother, a district court judge in California, had presided earlier.

Such recusals are also unusual in huge cases like the Harvard affirmative action case, and Jackson’s recusal would be very significant given the weighty issues at hand. While liberals are outnumbered on the court 6 to 3 and her absence might mean the dissenting side is only slightly smaller as a result, her absence could have an impact on how far the ruling might go, and it might foreclose the court’s left flank from drawing in Chief Justice John G. Roberts Jr. and/or another justice, as it has in some major cases.

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The GOP’s push for Jackson to detail her recusal criteria and whether she would recuse in this specific case will also be happening in the context of increasing recusal questions involving one of their favorite justices: Thomas. Evidence has built in recent weeks about his wife, conservative activist Ginni Thomas, and her role both in efforts to question the 2020 election results and her criticisms of the Jan. 6 committee investigating the matter. (Most recently came the news that she attended the Jan. 6 “Stop the Steal” rally that preceded the insurrection.) This hasn’t caused Thomas to recuse himself from such cases, and in fact he was recently the only justice to vote in favor of preventing the committee’s access to former president Donald Trump’s White House records.

As with that case, the question is how direct the tie is to the issue at hand and whether it meets the broad standards for recusal, which is that one’s impartiality might reasonably be questioned. In Thomas’s case — which appears more or less unprecedented — he has decided that his wife’s advocacy for the causes involved didn’t meet that standard. In Jackson’s case, it’s likely GOP senators will drill down on whether she played any role in Harvard’s affirmative action policy.

Raising Thomas’s case will be somewhat dicey for Democrats right now, with the news this weekend that he has been hospitalized with an infection. But to the extent recusal issues are a focal point this week, you can bet you’ll hear about more than just Jackson’s dilemma.

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