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.
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.