The NewStandard ceased publishing on April 27, 2007.

Roberts, Bush Officials May Skate Despite Apparent Ethical Impropriety

by Jessica Azulay

While Judge Roberts clearly broke the law by interviewing for the Supreme Court gig while hearing a vital case to which the Bush administration is a party, the act of dangling a job in his face was apparently not illegal.

Aug. 25, 2005 – In early April, the US attorney general met with a sitting judge on one of the county’s most powerful courts. The meeting was the first in what was to become a series of job interviews for the judge, held with various members of the Bush administration.

Six days later, on April 7, the judge, as part of a three-member panel, began hearing one of the most important cases moving through the federal courts – a case that cuts to the heart of presidential authority in the so-called "war on terror."

At no point did the judge disclose, as is required by law, that he was meeting privately and repeatedly with one party to the case. At no point did he, as required by law, recuse himself from the case in light of the apparent conflict of interest his career aspirations posed.

On July 19, just days after the Hamdan v. Rumsfeld case, was decided in the Bush administration’s favor, essentially endorsing the constitutionality of the administration’s detention policies at Guantánamo, the president announced that the judge, John Roberts, was his nominee to the highest court in the land.

The recent disclosure by Supreme Court nominee Judge John Roberts that he was interviewing for an appointment to the Supreme Court while considering a case challenging the policies enacted by the very same people he was asking for a job is raising questions about Roberts’s fitness for the job, the legality of the nomination process and the legitimacy of the Hamdan ruling.

What is less clear is the culpability of members of the Bush administration who dangled the job in front of Roberts while he was considering the case.

"[Roberts] had to resign [from the case], that’s completely obvious… he had to recuse himself, that’s a given," said Michael Ratner, president of the Center for Constitutional Rights. "He shouldn’t be on the Supreme Court because of that. That he didn’t [recuse himself] should make him ineligible completely." Ratner’s organization has been at the forefront of legal efforts to gain constitutional and international law protections for the Guantánamo detainees but is not involved directly in the Hamdan case.

As reported by The NewStandard last week, the Judicial Code of Conduct states that "a judge is disqualified and shall recuse himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." Since Roberts’s disclosure about the dates that he met with Bush administration officials about the Supreme Court decision, several legal analysts have said that the job interviews clearly pose an apparent conflict of interest.

What is less clear is the culpability of members of the Bush administration who dangled the job in front of Roberts while he was considering the case.

"There is an ethical ban on a lawyer communicating ex parte [without the other party present] with a judge during a case, unless legally authorized to do so," said David Luban of the Georgetown University Law Center in an interview with TNS. Last week Luban co-authored an opinion piece published in the online magazine Slate pointing out the illegality of Roberts’s failure to recuse himself.

Ratner argued there was “no chance” Roberts would have received the nomination had he ruled against the administration.

But Luban said that even though lawyers with the Justice Department, which Attorney General Gonzales heads, were arguing the case on behalf of the Bush administration, he does not think the ban on ex parte meetings applies to Gonzales because he was not arguing the case himself. "But it isn't clear-cut," Luban noted.

In most cases, it is up to a judge to ensure there is no conflict of interest when hearing a case, lawyers told TNS. Even though Bush administration officials may have put Roberts in a difficult situation by demanding confidentiality during the interview process, Luban speculated, it was ultimately Roberts’s responsibility to disclose his meetings and recuse himself.

There are no legal prohibitions, on a party to a case offering a judge a job, according to Luban. For instance, it would not be illegal for the head of a corporation to offer a judge an attractive position while that judge is hearing a lawsuit against the executive’s company. Such an offer would only cross the line if it was intended to persuade the judge to rule in favor of the company in exchange for the job. In that case, it would be a bribe.

"It's the judge's responsibility not to have these conversations, not the executive’s," said Luban of the hypothetical case. "If the judge has the conversation, he must notify the other side or recuse himself from the case. If the conversation involves a quid pro quo – [a] job offer in return for favorable decision – it’s a crime to make the offer and a crime to accept it. But if there's no quid pro quo, there's no crime."

While there is not currently evidence that there was an actual agreement involving a Supreme Court nomination in return for a favorable verdict, Ratner argued there was "no chance" Roberts would have received the nomination had he ruled against the administration.

The very case Roberts just ruled on, like related ones moving through the court system, will eventually end up in front of the Supreme Court. With so much riding on the policies challenged in Hamdan, and with the unpredictable hostility already shown even by some conservative judges on the volatile "enemy combatants" issue, it is unlikely the Bush administration would have chosen a judge who did not endorse its more extraordinary practices.

Already, Reagan-appointed Supreme Court justices Scalia and Rehnquist, as well as district court judges Robert Dumar and Henry Floyd – appointed by Reagan and George W. Bush, respectively – have ruled against the government in key cases challenging administration authority on the "enemy combatants" issue.

Ratner acknowledged that it is not unreasonable to think that Roberts, a Bush appointee and a staunch conservative, would have ruled in favor of the Bush administration, job offer or none. "[The decision] may have been the same," he said. "It may not have, but the point is that’s why you have [judges] disqualified from sitting in that situation. Even if [Roberts] said it didn’t affect [him] at all, how does he know that?"

Ratner is calling for an independent investigation into the events surrounding the nomination process.

"If they did this for the purpose of influencing [Roberts’s] vote on that case, it could be conceived as a bribe," Ratner said. "It certainly would at this point to me be sufficient evidence to require an independent investigation to see what happened here."

But Luban called the bribe theory "preposterous."

"That's pretty far-fetched," he said. "All the evidence suggests that they made the offer to Judge Roberts because he combines conservative views, great legal ability, youth, and confirmability."

Ratner acknowledges of the case against the Bush administration is a long shot.

"[The administration] would argue that these two [events] had nothing to do with each other," he said, "and that Roberts was on [their] radar screen all along, and the way they might prove it would be to go back six months before the [Hamdan] case was even assigned to him and say see here’s our short list of five judges and he’s one of those."

He continued, "There should be a full-scale investigation into all the documents that were generated around the nomination within the administration, the notes of any conversations, when they decided to approach him."

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The NewStandard ceased publishing on April 27, 2007.


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Jessica Azulay is a staff journalist.

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