OPINION: This article may contain commentary which reflects the author's opinion.
Supreme Court nominee Ketanji Brown Jackson is going to have to face some tough questions during her hearings in the Senate to gain the approval she needs to be the next Justice, and some of those are going to focus on affirmative action on college campuses because of her ties to Harvard University.
Some Republican lawmakers have been examining her record and they want to know about her position on the governing board of her former alma mater, The Washington Post reported.
“If she’s not going to recuse, she needs to tell us what her role has been” at Harvard, Republican Texas Sen. John Cornyn said. “I expect that she’ll studiously avoid answering any questions. It seems to be the practice.”
Jackson, whose term on Harvard’s Board of Overseers expires this spring, has not said publicly what she would do. A White House spokesman, Andrew Bates, said this week that she “would follow the highest ethical standards when it comes to recusals.”
But whether Jackson should step aside is not so clear-cut. A review of the cases in which she chose to recuse during eight years as a District Court judge shows she was highly attuned to concerns about the appearance of partiality and at times more cautious than the rules required, according to ethics experts who note that Jackson appears to have gone out of her way to disqualify herself from handling several cases when it was not necessary.
Jackson’s confirmation hearings, scheduled to begin March 21, provide an opportunity, said law professor Susan Fortney, for the judge to “signal the type of justice she will be,” including on the issue of judicial ethics.
“Although some may maintain that her position as a member of the Board of Overseers does not trigger recusal if the board was not involved in decision-making related to the admissions program, a different perspective is that impartiality should be considered in the eye of the beholder and that her impartiality might be reasonably questioned because of her governing board connection,” Fortney, the head of the Program for the Advancement of Legal Ethics at Texas A&M University law school, said.
If she did recuse herself it would show that “she intends to hold herself to high ethical standards and promote confidence in the administration of justice. This may inspire other justices to examine their own conflicts and impartiality,” she said.
Gabe Roth, executive director of Fix the Court, believes that she may be required to be disqualified from the case.
“Six years on the Board is a long time, so, to quote the federal recusal law, her ‘impartiality’ in the case — that is, in favor of Harvard, given her ties to the Board — ‘might reasonably be questioned’ here, meaning disqualification is required,” he said.
But, he said that justices often “ignore the recusal law in favor of what they call a ‘duty to sit’ — that in close cases, the need to keep the court at full strength with nine justices outweighs any perceived bias.”
“Balancing these factors, I believe it would be prudent for her to recuse,” he said.
New York University law professor Stephen Gillers said that it could be more prudent for her to recuse herself if she played a role in crafting the admissions policy of the university..
“In theory, she could be so associated with the well-being of the school through her many works for the school and her relationships with the governance of the school that we would say her impartiality may reasonably be questioned,” he said.
“There has to be such a degree of identification with the well-being of the institution that a reasonable person would question the judge’s impartiality in a case in which the university is a party,” he said.