Outside the Beltway

Justice Gonzales and the Recusal Problem

James Joyner · Monday, June 27, 2005 · 1 comment

Ramesh Ponnuru makes an interesting argument as to why Alberto Gonzales would make a poor choice for the Supreme Court, at least right now: He’d be unable to vote on the key issues of the day because of his association with the president.

If President Bush nominates Attorney General Alberto Gonzales to fill a Supreme Court vacancy, he won’t be naming a new justice. He’ll be naming something more like a new half-justice. A Justice Gonzales would have to recuse himself from cases dealing with a wide range of issues — from the Patriot Act to partial-birth abortion — because of his high-level service in the Bush administration.

Federal law is clear: No federal judge, including any Supreme Court justice, may participate in a case if he “has served in governmental employment and in such capacity participated as counsel, advisor or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” In addition, justices are to recuse themselves “in any proceeding in which his impartiality might reasonably be questioned.” Given that Gonzales was Bush’s White House counsel for the entirety of his first term, and is now attorney general, that means he will have to decline to participate in a lot of important cases.

The administration’s legal positions could therefore lose ground precisely because one of their architects would be on the Court.

The Supreme Court voted 5-4 to provide constitutional protection for partial-birth abortion. If Gonzales replaces Justice O’Connor, who voted with the majority, that becomes a 4-4 split that leaves the lower courts’ judgment in place — which almost certainly means that partial-birth abortion continues without restriction. If Gonzales replaces Chief Justice Rehnquist, who dissented, there’s a 5-3 majority for keeping the procedure legal.

Gonzales might be compromised on campaign finance, on Patriot, on affirmative action, on military tribunals for terrorists, and on the disclosure of executive-branch documents. Maybe the Bush administration isn’t deeply interested in all of these issues, but it surely wants to maximize its odds of prevailing on some of them. And nobody can know what other issues demanding recusal might come before the Court — or rather, before eight of its justices.

Granted, Justices have a funny way of deciding that there is no conflict of interest at all. Indeed, some of the most famous cases in Court history were decided by justices with former ties to the extant administration, most notably Marbury v. Madison, wherein the freshly minted Chief Justice, John Marshall, had been the Secretary of State who had failed to deliver Marbury’s commission.

Still, times have changed. The Court already has some legitimacy issues owing to several recent controversial decisions. Appointing a figure so integral to the most controversial issues that will likely come before the Court would almost certainly force Gonzales to either recuse himself or further weaken the Court. If there’s going to be a Gonzales appointment, it may well make sense to save it for the end of Bush’s term, should an opening arise.