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Jackson recusal questions betray the high court’s bigger problem

Next week’s confirmation hearing for Judge Ketanji Brown Jackson could ramp up demands that Supreme Court justices be held to a code of ethics.

WASHINGTON (CN) — As the Supreme Court nomination of Judge Ketanji Brown Jackson moves to the Senate for consideration, some lawmakers are already urging Jackson to withdraw, should she win confirmation, from an upcoming major case involving her alma mater. 

Jackson has longstanding ties to Harvard University, which is at the center of a challenge to affirmative action the court will hear next term. She attended Harvard for undergrad and law school, and she has been on the university’s Board of Overseers since 2016. 

Harvard’s Board of Overseers is one of two governing boards, which, according to the university’s website, “plays an integral role in the governance of the university.” Members of the board counsel the university on priorities, plans and strategic initiatives. 

Senators John Cornyn of Texas and Josh Hawley from Missouri are among Republicans meanwhile who are already suggesting, according to Washington Post reporting, that this record could represent a conflict of interest for Jackson,. Hawley went so far as to say she should recuse. 

Ethics experts say the issue is a toss-up. 

On one hand, if confirmed, Jackson would have a duty to sit unless she had a clear-cut conflict of interest in the case. It’s not clear that Jackson was directly involved in any admissions decisions related to affirmative action policies. 

However, it would also be easy to look at Jackson’s six years on the university’s board and come to the conclusion that she could have had some influence on admissions policies at some point. The question of whether she actually did might be moot. 

“The perception is that she played an integral role in certain advisory functions,” Gabe Roth, the executive director of Fix the Court, said in a phone call. “So a reasonable observer might think that she has a bias in the case because she either participated in admissions policies or she is biased in favor of Harvard.” 

Roth said that perception could be a reason to recuse regardless of whether she was actually involved in admissions decisions related to the case. 

“The bottom line comes down to what it says in federal law which says that any judge or justice shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned,” Roth said. “The fact that we're even having this conversation implies that there is a question out there as to whether or not there she has a bias, fair or not.”

But a justice’s recusal is not without consequences itself. When a justice steps down from a case, unlike with other courts, there is no one to take their place. One idea that was proposed by the late Justice John Paul Stevens was to call back retired justices if a recusal left the bench without a full roster. 

All of the current justices on the court and many of its predecessors have participated in cases where court watchers said they should have recused. Most recently, Justice Clarence Thomas’ refusal to recuse in a case concerning records related to Jan. 6 sparked outrage after reporting uncovered ties between his wife and rally planners. In other instances, justices have failed to recuse in cases where the existence of financial impartiality like stock ownership could be considered a conflict of interest.

While some have argued that the discourse around Jackson’s possible recusal has been brought up by senators trying to undermine her nomination, the discussion brings to the forefront a topic court watchers have long lamented over: the justices are not held to any official ethics code. 

Only one rule governs a justice’s recusal, and that is if their impartiality might somehow be questioned. The interpretation of what would lead to questioned impartiality is left up to the justices, and there is no recourse for whatever decision they land on. 

“The larger issue of wanting justices to be more cognizant about their actual and potential conflicts of interest is an incredibly important conversation to have, especially now, when public confidence in the Supreme Court is waning,” Roth said. 

President Joe Biden’s Supreme Court Commission suggested reform on recusals focus on making the process more transparent and accountable. 

“A code of conduct for the Court would bring the Court into line with the lower federal courts and demonstrate its dedication to an ethical culture, beyond existing statements that the Justices voluntarily consult the Code,” the commission determined

Some possible recusal reforms include requiring justices to provide reasons for recusing or failing to do so, establishing a procedure where recusal decisions could be reviewed by another justice or the full court, and making recusal laws easier for justices to avoid financial conflicts. 

“Recusal decisions by lower court judges are orders in a case and, like other rulings, are subject to review on appeal,” the commission’s report states. “By contrast, a recusal decision by a Justice is not subject to further review. Perhaps in part for this reason, the Justices rarely offer any explanation either for refusing to recuse or for recusing.” 

The justices could decide to impose an ethics code onto themselves — either adopting an already used code used by federal judges or creating their own — or Congress could do it for them.

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