Can Roberts overcome Ethics Lapse?
The Wall Street Journal honed in on a recent ethics gaffe by Supreme Court nominee John Roberts (see 8/26/05 issue, p. A4). He ruled in favor of a case involving President Bush on the same day -- July 15 -- that Roberts met with Bush for the job-clinching interview. The blunder was revealed in a response to a Senate Judiciary Committee questionnaire.
Speaking as a lawyer myself, this is a conflict of interest you could see in the dark. Roberts was on a three-judge panel in the Salim Hamdan case, about the Bush administration's policy to deny legal rights to Guantanamo detainees before military commissions. The Hamdan case differs from others because of the personal involvement of the president, who created the military commissions in an executive order and selected Hamdan as eligible for prosecution.
Roberts could have:
- Notified the litigants of his conflict of interest.
- Recused himself.
Law professors Stephen Gillers of NYU, David Luban of Georgetown U. and Steven Lubet of Northwestern U. wrote an artice citing prior instances where other judges recused themselves in similar situtions. The White house responded with professors Ronald Rotunda of George Marshal U. and Thomas Morgan of Geoerge Washington U., who said that Roberts' impartiality could not "reasonably be qeustioned" and that he broke no ethics rule.
I follow the maxim that "if it looks like a duck, walks like a duck and sounds like a duck -- it's a duck." In this case, the duck is a quid pro quo. Here in Chicago, where I live, when a judge rules in favor of his patron, we refer to this as a payoff.
NARAL is back with a TV commercial on CNN criticizing Roberts, the Teflon Nominee. "But John Roberts dismissed one of our established liberties as the 'so called right to privacy,' and co-wrote a brief arguing that Roe v. Wade shold be overruled," the announcer says. "There is just too much at state to let John Roberts become a decision vote on the Supreme Court. NARAL's earlier TV ad was yanked immediately for being false and misleading.
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