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.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.
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.
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.