Aug. 19, 2005 – President Bushâ€™s Supreme Court nominee recently admitted that he was interviewing for a seat on the high court while hearing a case that called into question the presidentâ€™s authority to use a special military tribunal to try a so-called "enemy combatant." Some legal analysts not only say the apparent conflict of interest calls into question the impartiality of the Judge John Robertsâ€™s deliberations on that case, but argue that the nomineeâ€™s failure to recuse himself from the proceedings was illegal.
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"The news thatâ€¦ Roberts was interviewed for the Court seat by Attorney General Gonzales, Vice President Cheney and others while he was deciding a case that went to the heart of the legality of the administration's so-called 'war on terror' should finish off his nomination," said Michael Ratner, president of the Center for Constitutional Rights (CCR), in a press statement. CCR has been at the forefront of litigating for the rights of the detainees held at the GuantÃ¡namo Bay prison camp in Cuba, though the group is not representing Hamdan personally.
As reported previously by The NewStandard, the US Court of Appeals for the District of Columbia Circuit handed down a decision authorizing the use of a controversial military tribunal system to try GuantÃ¡namo detainee Salim Ahmed Hamdan just days before Roberts, a judge on that court, was announced by Bush as his nominee to replace retiring Justice Sandra Day Oâ€™Connor.
"The central issue of Hamdan v. Rumsfeld was the application of the Geneva Convention to alleged terrorist detainees," said Ratner. "The policy was crafted by the very people who were interviewing Roberts for his new job. He would have every reason to make sure his decision did not disagree with the administration, and it did not."
But what was not known to the public at the time of Robertâ€™s nomination was that he had met with administration officials -- including the head of the Justice Department, which was arguing the Hamdan case on behalf of the White House -- several times both before and during the proceedings. These job interviews were taking place unbeknownst to Hamdanâ€™s lawyers and represent at least the appearance of impropriety on the part of the Bush administration and Judge Roberts.
The Judicial Code of Conduct explicitly requires judges to step down from cases in which they have real or perceived conflicting interests. "A judge is disqualified and shall recuse himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned," reads the Code.
According to Robertâ€™s answers on a Judiciary Committee questionnaire in preparation for the upcoming Senate confirmation process, Attorney General Alberto Gonzales interviewed him about the Supreme Court position on April 1.
Roberts disclosed that he was subsequently interviewed on May 3 by Gonzales, Vice President Dick Cheney, Chief of Staff Andrew Card, Counsel to the President Harriet Miers and Deputy Chief of Staff Karl Rove, among others. Miers interviewed Roberts again on May 23, and again by telephone on July 8. Roberts also interviewed with President Bush on July 15.
The US Court of Appeals first began hearing the Hamdan case on April 7. The three-judge decision affirming the Bush administrations position was rendered on July 15.
"Did administration officials or Roberts ask whether it was proper to conduct interviews for a possible Supreme Court nomination while the judge was adjudicating the government's much-disputed claims of expansive presidential powers?" wrote three law professors in an opinion piece about the recent disclosure published in the online magazine Slate. "Did they ask whether it was appropriate to do so without informing opposing counsel?"
The commentary was authored by Stephen Gillers of the New York University School of Law, Steven Lubet, of the Northwestern University School of Law, and David J. Luban of the Georgetown University Law Center.
"If they had asked," the three continued, "they would have discovered that the interviews violated federal law on the disqualification of judges. Federal law deems public trust in the courts so critical that it requires judges to step aside if their â€˜impartiality might reasonably be questioned,â€™ even if the judge is completely impartial as a matter of fact."
It is unclear how much of an effect the issue will have on Robertsâ€™s chances at confirmation.
The Bush administration is denying that any impropriety took place. "There was no conflict whatsoever," White House spokeswoman Dana Perino told Newsday.
Other law professors, interviewed by the Washington Post, downplayed the significance of Roberts not recusing himself from the case.
Monroe Freedman, a legal ethicist at Hofstra University School of Law, told the Post that requiring appellate court judges hoping for promotions from the White House to step down from cases like Hamdan would be too burdensome, even though such judges frequently hear cases to which the federal government is a party.
But Gillers, Lubet and Luban said the Hamdan case is unusual due to its central role in determining the limits of presidential authority in crafting detention and judicial policies for the people it arrests during its so-called "war on terror." They also noted the "spill-over effect" of that case "on the legality of controversial interrogation techniques used by the government at GuantÃ¡namo and elsewhere," as both issues are rooted in the same provisions of the Geneva Conventions.
Meanwhile, commentators are speculating about how the recent revelations might have an effect beyond Roberts himself. Gillers, Lubet and Luban wrote that the validity of the Hamdan ruling is now called into question.
"Although the procedural rules are murky," they wrote, "it may yet be possible for Judge Roberts to withdraw his vote retroactively. That would at least eliminate the [precedent-setting] effect of the opinion on whether the Geneva Conventions grant minimum human rights to Hamdan and others in his position."
Ratner, of CCR, said the situation implicates members of the Bush administration as well as Roberts. He said the job interview -- coming in the midst of a case with so much importance to the administrationâ€™s detention policies -- could be construed as a "bribe."