Jackson recusal questions betray the high court’s bigger problem | Courthouse News Service

I have advocated that the Supreme court declare that the Code of Judicial Conduct apply to it.

But the Justices have said no.  28 USC 455 governs the question of recusal.  Even if it applied Brown Jackson would be free to sit on the upcoming federal custodian of the key. GWC

Jacnkson recusal questions betray the high court’s bigger problem | Courthouse News Service

WASHINGTON (CN) — As the Supreme Court nomination of Judge Ketanji Brown Jackson moves to the Senate for consideration, some lawmakers are already urging Jackson to withdraw, should she win confirmation, from an upcoming major case involving her alma mater. 

Jackson has longstanding ties to Harvard University, which is at the center of a challenge to affirmative action the court will hear next term. She attended Harvard for undergrad and law school, and she has been on the university’s Board of Overseers since 2016. 

Harvard’s Board of Overseers is one of two governing boards, which, according to the university’s website, “plays an integral role in the governance of the university.” Members of the board counsel the university on priorities, plans and strategic initiatives. 

Senators John Cornyn of Texas and Josh Hawley from Missouri are among Republicans meanwhile who are already suggesting, according to Washington Post reporting, that this record could represent a conflict of interest for Jackson,. Hawley went so far as to say she should recuse. 

Ethics experts say the issue is a toss-up. 

On one hand, if confirmed, Jackson would have a duty to sit unless she had a clear-cut conflict of interest in the case. It’s not clear that Jackson was directly involved in any admissions decisions related to affirmative action policies. 

However, it would also be easy to look at Jackson’s six years on the university’s board and come to the conclusion that she could have had some influence on admissions policies at some point. The question of whether she actually did might be moot. 

“The perception is that she played an integral role in certain advisory functions,” Gabe Roth, the executive director of Fix the Court, said in a phone call. “So a reasonable observer might think that she has a bias in the case because she either participated in admissions policies or she is biased in favor of Harvard.” 

Roth said that perception could be a reason to recuse regardless of whether she was actually involved in admissions decisions related to the case. 

“The bottom line comes down to what it says in federal law which says that any judge or justice shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned,” Roth said. “The fact that we're even having this conversation implies that there is a question out there as to whether or not there she has a bias, fair or not.”

But a justice’s recusal is not without consequences itself. When a justice steps down from a case, unlike with other courts, there is no one to take their place. One idea that was proposed by the late Justice John Paul Stevens was to call back retired justices if a recusal left the bench without a full roster.