Disqualifying Gonzales:

Ramesh Ponnuru raises an atypical objection to President Bush nominating Alberto Gonzales to the Supreme Court should a justice retire: He would have to recuse himself in too many cases. Unless Gonzales largely abdicated his responsibilities as White House Counsel and Attorney General (highly doubtful), he could be disqualified from participating in many high-profile and controversial cases arising out of Bush Administration policy.

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. . . .

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.

Of course, the primary conservative objection to Gonzales is that he's too "liberal" (or insufficiently "conservative") — or, at least, that there's unsufficient basis upon which to assess his judicial philosophy. The two concerns are related, however. Conservatives want to ensure that the next justice is a solid conservative vote on many issues, particularly if Chief Justice Rehnquist retires. If Gonzales is forced to recuse himself, that is one less potential conservative vote in any given case. So the recusal issue is one more reason why conservatives would be wary of a Gonzales appointment.

Setting aside ideological concerns, I think potential recusal is a serious issue, though I do not think it should be disqualifying. There's a good reason for wanting an odd number of justices -- it avoids tie votes and the doctrinal confusion that can result. So, all else equal, it would be preferable to have a justice who would not be required to recuse himself or herself in a large number of cases. Such a concern would be particularly strong when, as now, one could expect a sizable number of close cases in which the ninth vote could make the difference.

Four-four votes do not particularly cut in one ideological direction or the other because it requires a Court majority to reverse a lower court judgment. A tie vote leaves the lower court's decision undisturbed. Whether this helps or hurts the Bush Administration or any other party to a given case depends on how the lower court ruled.

Potential recusal should not be an automatic disqualier, however. There have been quite a few Justices with executive branch experience, including Chief Justice Rehnquist. That a given nominee might have to recuse in a few cases during his or her first few years on the bench is legitimate concern, but I don't think it should be enough, by itself, to disqualify any nominee.

Mark Eckenwiler:
It's worth recalling that Thurgood Marshall went directly from being Solicitor General to the Court.
6.27.2005 11:56am
Jake (mail):
I think the reason that recusal would be a particular problem here comes from the makeup of this court. If you think of it as producing somewhat randomly distributed 5-4 decisions (as O'Connor or Kennedy flip-flop), then recusing Rehnquist's slot turns "liberal wins" into 5-3 victories, and "conservative wins" into 4-4 ties. If the lower court decisions are randomly distributed, then you're turning a 50/50 court into a 75/25 court.

And of course, this assumes that Gonzales isn't Spanish for Souter.
6.27.2005 11:57am
Crank (mail) (www):
I seem to recall the claim being made that one reason for Lyndon Johnson appointing Ramsey Clark as AG was to force his father, Tom Clark, to resign from the Court to avoid an excessive number of recusals. Justice Clark did, in fact, step down.

On the other hand, during FDR's administration there was something of a pipeline of AGs and SGs to the Supreme Court.
6.27.2005 12:07pm
Craig Oren (mail):
Robert Jackson is an example of a former SG and AG who, during the FDR Administration, went directly from the AG's office to the Supreme Court.
6.27.2005 12:59pm
Scott Moss (mail) (www):
A broad construction of the recusal rule would make it very hard to become a Justice after holding a significant political position, whether appointed, like AG or SG, or elected, like a Senator who's voted or held hearings or made speeches on a lot of federal laws/issues.

A long paper trail of significant judicial opinions or articles already (at least since Bork) makes it harder to get appointed; how much further do we want to go in making qualifications into disqualifications?
6.27.2005 1:13pm
David Parsons (mail):
Given Ponnuru's known biases, I imagine his objections would be muted, if not non-existent, were Gonzalez a reliable right-winger. Still, he raises a crucial point, regardless of motive. The law officers of the executive raise particular problems in regard to recusal.
6.27.2005 1:22pm
Anthony (www):
How much less of a problem does Gonzalez' service for the Bush administration become if he's appointed late in 2008, when there will be a new administration in a few months? Even if it looks like there will be a Republican administration after Bush, the recusal issue should be significantly less problematic by then.
6.27.2005 1:29pm
Scott Moss (mail) (www):
Re this argument that executive service can disqualify you: does Ponnuru now concede that Miguel Estrada's paper trail as an executive branch attorney should have been disclosed before he could take a position on the Court of Appeals for the D.C. Circuit, which spends a substantial amount of time reviewing executive branch action?
6.27.2005 1:43pm
Arthur (mail):
Back in the day, young Jjustice Rehnquist recused himself from United states v. Nixon, the unanimous ruling case that led to President Nixon's resignation almost immediately. If Rehnquist hadn't been recused, it's a fair guess that the Court's ruling wouldn't have been unanimous, and might have been a very different ruling--in which case Nixon might well have found a way to avoid resigning. President Bush may be concerned that his most likely advocate at the Court be able to speak up fo rhim should a similar case arise.
6.27.2005 2:26pm
Salmon Chase (mail):
Ahh sonny, back in my day we didn't let a little thing like the appearance of conflict get in the way. Why i remember this one time as cheif justice I ruled that I myself had violated my constitutional authority when I was a cabinet member!
6.27.2005 2:31pm
brian (mail):
Well, with Scalia's example before him, Gonzalez need never worry about recusing himself, no matter how unseemly the connection.
6.27.2005 2:31pm
unhyphenatedconservative (mail):
"Well, with Scalia's example before him, Gonzalez need never worry about recusing himself, no matter how unseemly the connection."

What about Nerwdow, where he did recuse himself? Being hunting buddies is a far cry from helping determine policies being challenged.
6.27.2005 2:49pm
I find this objection to be rather short-sighted given Gonzalez's relative youth. The recusual problem will diminish over time, largely correcting itself.
6.27.2005 4:16pm
Goober (mail):
CO is right to point out Jackson. Indeed, he even voted to strike down laws he'd supported as AG, with a famous quote in a famous case, neither of which I can recall (so much for being famous).
6.27.2005 5:06pm
Steph (mail) (www):
The Case was McGrath v. Kristensen

"It would be charitable to assume that niether the nominal addressee nor the nominal author of the oppinion read it. That, I do not doubt, explains Mr. Stimpson's acceptance of an answer so inadiquate to his questions. But no such confession and aviodance can excuse the then Attorney General"
6.27.2005 7:32pm
Juego Texas hold'em (mail) (www):
Very nice site. Keep up the good work.

Juego Texas hold'em

8.30.2005 9:02pm