Integrity Test: Judge Ketanji Brown Jackson Will Be Conflicted Out Of The Harvard Affirmative Action Case If She’s Confirmed. Which Progressives Will Have The Ethics To Say So? [Corrected]

And will she?

Stipulated: Judge Jackson is a fully qualified choice to succeed Justice Breyer on the U.S. Supreme Court. Also stipulated: she should be and will be confirmed and by a large majority, unless Republicans are as petty and foolish as I think they are.

However, the soon to be Justice Jackson has an unwaivable conflict of interest in the contentious Harvard admissions case, which I would term a “scandal.” Harvard unambiguously discriminates against Asian-American applicants to inflate the numbers of lesser qualified black and Hispanic students admitted to the college. In the era of The Great Stupid, when racial discrimination is treated as “antiracism,” this SCOTUS case is a high profile and significant one, and Future Justice Jackson has a dog in the hunt, as they say. Jackson serves on Harvard’s board of overseers, one of the University’s two governing boards. The board plays “an integral role in the governance of the university.” End of controversy. She’s integrally involved with a party in the case. It is a classic conflict, and cause for recusal.

Right, Hudson?

Exactly.

But already, progressive lawyers and scholars are testing logic, law, and public trust by attempting to argue that the conflict isn’t what it is. Supreme Court justices never have to recuse from a case; we trust them to do the ethical thing and recuse.  Canon 2 of the Judicial Code of Conduct instructs judges to avoid even the appearance of conflicts or bias. “An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s … impartiality as a judge is impaired.” Canon 3 states that “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” That includes cases where “the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”

Jackson’s situation is what we in the ethics field call a “slam dunk.” However, an anomaly of our judicial system is that Supreme Court Justices have complete discretion over whether to recuse themselves or not, no matter what the conflict of interest is, how glaring or how destructive to the credibility of their decision in the case involved. So this case, which will likely be the first major case Jackson has an opportunity to hear as a SCOTUS rookie, will tell us a great deal about her character and whether she has the integrity to stand up to pressure from groups that have championed her nomination. If she does not recuse herself, she will have failed a crucial test.

As might have been expected, the progressive legal establishment, which has been leaking integrity for years, is  soiling itself and the law by trying to concoct some way to deny that Jackson’s conflict is what it obviously is. Harvard Law Professor Noah Feldman, arguably the most hard-left biased among all major law school professors, has led the way, arguing that “on the Board of Overseers, neither she nor the other overseers would have had definitive say over the admissions process at the University.”

I have two responses to that” “So what?” and “She still has an interest in Harvard winning the law suit, because she is part of the leadership and management of Harvard.” The last part is crucial: as a member of the board of overseers, she is bound by her fiduciary duties to a non-profit institution. As a board member, she cannot do anything that will harm the organization she is entrusted with serving. Having to decide objectively a case in which her own organization has a stake puts Jackson in an impossible position. She can’t, consistent with her fiduciary duties to Harvard, rule against the university. She can’t, consistent with her ethical duties as a SCOTUS justice, approach the case with a pre-set determination regarding which side she will favor.

Jonathan Turley seems genuinely alarmed that there is any chance that Jackson will not recuse, and has already written two articles about the issue, here and here, though not from the fiduciary duty angle. (He’s not an ethicist, after all.) he does feel that Jackson’s stance on recusal will be a major issue in her confirmation hearings, as it should be. He’s either playing Pollyanna (as he often does) or is genuinely more optimistic than I am, concluding his most recent brief on the topic by writing,

I have great respect for Judge Jackson and her ethics have never been questioned. I expect that she will recuse herself. I still see no ethical alternative.

There is no ethical alternative, but she is being given cover by ends justify the means ideologues like Feldman, and I will be amazed—impressed, but amazed—if she recuses. She will almost certainly be signing the death warrant for affirmative action by leaving the Court with a 6-2 conservative majority as the case is considered. She was nominated at least partially in an act of affirmative action. Moreover, her recusal would explode progressive heads all over America. How could  Biden’s selection of a black female justice work to  reduce the votes determining the future use of race for admissions at colleges? How could  the first black female justice remove herself from participating  in  the most consequential race-related case in decades? It would be seen as another botch by the Biden administration. Did the Administration not consider this problem before it decided on Jackson? While it would be short-sighted to base a  nomination for a lifetime post on a required recusal in a single case, placing any black judge in the position Jackson will be in seems reckless at best, and cruel at worst.

Turley seems to be certain that Jackson will do the right thing because he views the choice to recuse as unavoidable and beyond debate. He writes,

“It would be profoundly inappropriate for a jurist to sit on a case for a school in which she has held a governing position and a role in setting institutional policies. This would be akin to a justice sitting on a case on oil leases for Exxon while being a member of the oil company’s board of directors.”

That’s exactly right.

But I bet Jackson doesn’t recuse.

24 thoughts on “Integrity Test: Judge Ketanji Brown Jackson Will Be Conflicted Out Of The Harvard Affirmative Action Case If She’s Confirmed. Which Progressives Will Have The Ethics To Say So? [Corrected]

  1. I expect it won’t happen this time but, if a SCOTUS judge recuses themselves in a case, and it ends in a 4-4 tie, what happens?

  2. It would seem there is an ethical alternative to recusal: she must resign from Harvard’s board of overseers. That would terminate the fiduciary duty at the heart of the conflict of interest.

      • The suit was originally filed at the district level in 2014, two years before Jackson began her tenure on the Board of Overseers, so clearly her membership on the board didn’t give her a role in establishing the policy. If she were to resign, I think her past membership on a board that merely allowed such a policy to continue would be far too tenuous a thread to merit recusal.

        • Turley’s answer:

          Others have noted that
          “the board historically has advised the university administration on admissions policies.”

          The board bills itself as a governing body with overarching policy authority:

          “The Board of Overseers of Harvard University is critical to the governance of Harvard. As a member of the Board, each Overseer is expected to advance the interests of the University as a whole, taking into account interests of various constituencies while recognizing that a board member’s paramount responsibility is to the University rather than to particular schools, departments, programs, or individuals.”

          The board is further described in this way by Harvard:

          “The Board of Overseers is one of Harvard’s two governing boards, along with the President and Fellows, also known as the Corporation. The board directs the visitation process, the primary means for periodic external assessment of Harvard’s Schools and departments. Through its array of standing committees and the roughly 50 visiting committees that report to them, the board probes the quality of Harvard’s programs and assures that the University remains true to its charter as a place of learning. More generally, drawing on its members’ diverse experiences and expertise, the board provides counsel to the University’s leadership on priorities, plans, and strategic initiatives. It also has the power of consent to certain actions, such as the election of Corporation members.”

          It would be profoundly inappropriate for a jurist to sit on a case for a school in which she has held a governing position and a role in setting institutional policies.

          I think that’s right. Quitting now doesn’t change the fact that she was part of the body that allowed the challenged policies to continue under its watch.

          • Turley himself describes the boards role in admissions policies as “advisory”, indeed the board’s only direct power he identifies specifically concerns the election of corporation members?

            If we accept that such tenuous connections merit recusal, I have to wonder where it would stop? Must every justice who’s sat on a circuit court recuse himself from cases arising from that circuit, having been in a position to overturn all manner of laws in that circuit? Will justices now need to recuse from cases involving companies where they *once* owned stock?Indeed, taken to its logical extreme, everyone who has the vote has some level of role in establishing or continuing the laws of the United States and of their state of residence. At some point we have to call such interests too dilute to matter.

            The fiduciary duty is a hard, unwaivable conflict, but I’m not convinced mere past membership on a board with indirect authority during a policy’s passive continuation merits recusal.

            • But oversight isn’t indirect authority. It’s direct authority, if the Board chooses to use it. If the Board demands that a policy stop, it has the power and influence to stop it. The Board “is” Harvard. The lawsuit is against Harvard, and a member of that board at any time the issues in question existed can’t say that they are in a neutral stance in the lawsuit. A ruling against Harvard states that Harvard and its decision-makers have been and are wrong

        • The ethical Rubicon is the mere appearance of impropriety. Everything you cite could be true, but how would anyone know that she had not been corrupted by a conflict of interest? We can’t know. If she doesn’t recuse herself, her impartiality becomes a question that will stay with her for as long as she decides to be a Justice, just as the possibility that her race and lady parts could’ve given her an unfair advantage in being considered for SCOTUS.
          I’m sure that Republicans will pounce, but what she says during Advice & Consent is not legally binding to my knowledge.

  3. Probably very few. Progressives are very liberal with regards to applying standards to their own. They are very strict when applying them to conservatives.

    And what’s this nonsense about she should be confirmed by a large majority? That went out the window in 2017 with the attempt to slow walk Gorsuch, and then the later attempts to out and out block Kavanaugh and Barrett. Maybe it went out the window even earlier, when McConnell refuse to even consider Garland, or maybe even as early as 2007 when Schumer said that no GWB nominees should be considered for the rest of his administration. As far as I’m concerned, the Democrats have earned all the obstructionism they get, and Harris can strut her sorority ass over to the Senate to break the tie.

    • Because it’s do unto others as you would have them do unto you, not do unto others as they have done unto you. It’s difficult to take the high road, but there needs to be a consistent push from the American public for politicians to take the high road, not act like the mafia. What’s the point of being against a side if you want your side to act in the same manner?

    • She should be confirmed by a large majority because..1) By all standards, she is qualified. 2) Opposing her is petty, nasty, futile, and give ammunition to the “GOP=Racists” mob with no compensating benefits 3) The destructive partisan tit for tat culture has to be dismantled, and this is ideal opportunity to begin.

      Nevertheless, the Republicans don’t have the ethical fiber to do it.

      • 1) So were the last two justices, yet the Democrats spent huge amounts of time breaking balls. 2) Opposing them was just as futile and petty, but they did it anyway, in fact with Kavanaugh they tried to tear this nation in half. 3) That culture is now entrenched and cannot be dismantled. The GOP would look like either suckers or fools if they tried to do that now. All that said, it’s in the interest for just enough of the RINOs to vote for this nominee to move her through fairly quickly, and not light a partisan fire now. .

        • The republicans in congress project weakness, while the democrats project nastiness. It is not a good combination. The republicans don’t necessarily have to start being as nasty as the democrats, but they do need to stop being weak. Unless everyone wants more Trump and Marjorie Taylor Greens elected on the right, the weakness needs to stop. The leftwing nastiness also needs to stop. I do not foresee either of those happening, though, so I think we can look forward to escalations of political violence and increasing radicalization in political figures on the right.

    • I’ll let Oscar Wilde take this one: “Always forgive your enemies; nothing annoys them so much.”

      Imagine how much less effective Democratic propaganda will be if the Republicans confirm the Democratic SCOTUS nominee. That’s a good way to counter presentation mindset with presentation mindset.

      (I would still expect them to ask if she’d either recuse herself from this case where she has a conflict of interest, or resign from the Harvard board of overseers.)

      • Payback’s also a bitch. However, complete payback isn’t possible here absent a change in the makeup of the Senate, so only so much political capital should be spent.

  4. This is why earlier protestations about supposed conflicts of interest are so problematic: it makes people bad at recognizing legitimate ones.

    Now, the yammering idiots will respond to these arguments with, “yeah, but X did not recuse ….”

    This is the clearest conflicts issue I have seen for the Court and I don’t think it can even be fixed by her stepping down.

    But, I think she will recuse. I hope she does. It really is the easy choice in some ways. Recusing oneself demonstrates integrity, even if you might be wrong, because you can always claim to be erring on the side of fairness.

    I have always gained respect for a Judge who brings up a potential conflict, declares the ability to be fair, and offers to recuse if either side requests it. On the one hand, that looks like the judge is passing the ethical buck; on the other hand, it shows the judge is sensitive to the issue of conflicts and is actively trying to protect the integrity of the system.

    Of course, the stumbling block is suggesting to others (and yourself) that you might be biased. Ego can always be a stumbling block.

    -Jut

  5. If fully qualified for the court and still confirmed, how would the Republicans raising a high stink over such a large and clear conflict of interest fit into the ethics of the confirmation process?

  6. If that board wasn’t involved in and kept fully abreast of the Chinese student litigation, that board is a non-entity with no purpose whatsoever. These sorts of boards are the outfits that run colleges and universities. They sit down with the paid administrators and a set of the institution’s books and decide how the administrators should proceed on critical matters. This is a perfect, clear as day conflict of interest. To not recognize it as such suggests the person taking that position is an idiot.

  7. If Ms Jackson does not recuse, Republicans can raise a stink. The authority/crdibility/public perception of the Supreme Court would be weakened. This would suit the Democrats just fine with a 6-3 court.

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