Roberts heard a lawsuit against BushCo while interviewing for SCOTUS

[magellan]

Haven't seen this mentioned, sorry if it's a dupe. From Democracy Now!, today:

"Two Democratic senators are calling on Supreme Court nominee John Roberts to explain before his confirmation hearings why he continued to judge a lawsuit against the Bush administration while being interviewed to be a justice. In that case, Roberts ruled in favor of the Bush administration on a case that said the Bush administration could deny Guantanamo prisoners constitutional rights they would theoretically have in US courts. Senators Charles Schumer of New York and Russ Feingold of Wisconsin wrote a letter to Roberts, saying Roberts' answers will determine whether they bring the issue up at his confirmation hearings beginning Sept. 6."

Another example of the wonderful ethics these Repukes have. It'll be VERY interesting to hear why he didn't recuse himself.

[enough]

1. The Nashua Advocate covered this. Glad to see the story coming back.

Posted on DU some time ago. Thanks for keeping this storyt alive, magellan.

Wednesday, August 17, 2005
John Roberts' Massive Conflict-of-Interest in Critical War on Terror Court Case, Hamdan, Should (But Won't Be) an Obstacle to His Nomination
http://www.nashuaadvocate.blogspot.com/

Highly Decorated Judge Mysteriously Failed Remedial Ethics Test While Judge for D.C. Circuit, Was Job-Hunting With a Litigant While Presiding on That Litigant's Case (Hint: the Litigant Was and Is the Bush Administration)
COURTESY OF WWW.SETHABRAMSON.BLOGSPOT.COM

If you're an attorney in America today and you've one ounce of objectivity on the non-partisan, apolitical, wholly professional issue of ethics in the legal field, you're pretty pissed off at Supreme Court nominee John Roberts right now.

That's because, according to The Washington Post, Roberts was engaged in secret job interviews with top Bush Administration officials--including Vice-President Dick Cheney, Chief-of-Staff Andrew Card, Attorney General Alberto Gonzales, and Deputy Chief-of-Staff Karl Rove--while one of Gonzales' deputies at the Department of Justice was arguing, before Roberts, perhaps the most important wartime executive powers case of our generation.

Any lawyer worth his salt, who practices in the field and not merely in the schoolhouse, knows this is an ethical violation, as judges--like attorneys, but frankly even moreso--are charged by the legal profession's Rules of Professional Conduct to avoid even the appearance of a conflict of interest in the cases they preside over (or, in the case of attorneys, the cases they litigate).

Roberts failed this test, failed it miserably, and frankly his impeccable judicial credentials--so touted by Republicans in the run-up to his nomination hearings--prove, beyond any doubt whatsoever, that he should have and did know better. Imagine, for a moment, that you're a litigant before the D.C. Circuit Court and your very liberty is at stake. Unbeknownst to you, one of the three judges selected to decide your fate is job-hunting with the party opposite.

No, correct that: much more than "job-hunting."

more>

[magellan]

4. Well it's good to see Schumer and Feingold are all over it

If things were as they should be, Roberts' ethical lapse would be enough to kick him to the curb. But knowing the Repugs, "obstructionism" will be their first thought.

[enough]

2. Duplicate post, sorry.

delete

[ET Awful]

3. Not only did he hear it, but if I recall properly, he handed down his

decision the same day he had the final "interview" meeting with the administration prior to his name being submitted as the nominee.

[magellan]

5. Really?!

This just STINKS worse and worse. And yet I've no doubt he'll be confirmed. What little value for integrity there is left on the Hill is largely confined to the left side of the aisle...and unfortunately that ain't saying much.

[ET Awful]

6. I'm almost positive I read or heard that somewhere in the past 2 days

I can't find a link currently though.

[magellan]

7. You're right, here it is from Democracy Now!, July 25th

Roberts was also part of a three-judge panel that handed Bush an important victory the week before Bush announced Roberts nomination to the bench. In fact, the day before the ruling was issued, President Bush interviewed Roberts at the White House. The next day, the court released their ruling that the military tribunals of detainees held at Guantanamo Bay, Cuba, could proceed. The decision also found that Bush could deny terrorism captives prisoner-of-war status as outlined by the Geneva Conventions.

This is outrageous, even by my layman's standards. Here's what a law professor thinks!

MICHAEL RATNER
President of the Center for Constitutional Rights, Ratner is co-author of the book Guantánamo: What the World Should Know. He said today: "The news that potential Supreme Court nominee John 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.

The central issue of Hamdan v. Rumsfeld was the application of the Geneva Convention to alleged terrorist detainees. 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. The legal standard set forth in the U.S. law is that a judge should remove himself if his 'impartiality might reasonably be questioned.'"

more...Law Professors Scrutinize Roberts

[onenote]

8. this is a worthless distraction

There is no precedent that I have been able to find for a judge being considered for a judicial "promotion" to recuse his or herself. And it would be a dangerous precedent, since it would allow the administration to force judges that they didn't want to sit on a particular case to recuse themselves simply by calling them in for an interview (even if there is no pending vacancy, which was the case when Roberts was interviewed).

This was covered in an earlier thread:


http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=2034119&mesg_id=2034321

onenote

[magellan]

9. And that would be just as unethical

Sorry, but I don't accept your argument. Both instances are equally wrong. One would hope that one side or the other would have the character NOT to create the appearance of a conflict of interest, or of tampering with the justice system.

Bottom line, Bush** should not have interviewed Roberts while he was handling the government case. If neither side can be trusted to do the right thing then obviously the judicial nomination process needs to be changed.

[onenote]

10. I still don't see how you could adopt a workable rule

When would recusal be required? Keep in mind that when Roberts was first interviewed, there wasn't even a vacancy on the court. Should any judge that's interviewed for a higher position be required to stay away from cases where the government is a party for the rest of the term (or terms) of the administration that interviewed him (or her)? Should a judge only recuse him/herself from cases brought before the interview, but not cases brought after? That doesn't seem to make any sense. Also, Roberts wasn't nominated until after the decision was issued. (By the way, given that its a three judge court and he was the only judge not to write an opinion, its a virtual certainty that he had no control over the timing of the opinion's release).

I'm not trying to defend the guy. Its just that I think this is the wrong tree for Dems to be barking up unless someone can come up with a workable standard that is open to the charge that what went on in this case is unprecedented, which I don't think is possible.

onenote

[magellan]

12. The law is fine

It's the people dancing around it in Washington who need a slap down.

True enough, there was no vacancy when Roberts was first interviewed. But that's not to say vacancies weren't foreseen. The possibility of one or even two SCOTUS appointments during Bush**'s mal-administration predate his presidency. And don't forget, the grave nature of Rehnquist's illness had been known for several months by April. The WH would have been remiss not to have been interviewing by then.

All I'm going to say about when recusal is required is that it's a matter for the judge to decide, bearing in mind the law on ethical standards he/she is held to as an officer of the court. The US Code states very clearly that "a judge is disqualified and shall recuse himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned".

For example, the law required Roberts to disclose that he was meeting privately with individuals who were closely involved with a party to the case. I'm not a lawyer, but I believe that on its face this has to do with "ex parte communication":

"An ex parte communication occurs when a party to a case, or someone involved with a party, talks or writes to or otherwise communicates directly with the judge about the issues in the case without the other parties' knowledge."

Gonzales heads the government's legal team. Bush** was a defendant. True, Roberts met with Gonzales 6 days before opening arguments began and with Bush** the day of the ruling (which could be significant to why Roberts gave no opinion). But it would be difficult to argue that the WH staff Roberts interviewed with while the case was ongoing -- Rove, Cheney, Card, etc. -- weren't "involved with a party to the case".

Whether or not ex parte communication actually occurred during any of Roberts' interviews is besides the point; it's the appearance of ethical impropriety on his part that matters. He placed himself in a position that suggests a conflict of interest. Roberts had two choices legally: disclose his meetings at the WH and recuse himself, or turn down the job offer. He did neither, and it reflects badly on his scruples.

Do we really want to knowingly confirm a judge to the SCOTUS who can't hold himself to the ethical standards the law imposes on him?

Just one more thing, about forcing judges to adhere to the law and recuse themselves in instances like this. You say this sets up a flawed precedent where a President could -- if he were so inclined -- remove what he perceived to be an unfavorable judge from a case of interest to the White House, simply by interviewing him/her for a higher position.

Well, yes, it would be trading one temptation for another. But SCOTUS vacancies are infrequent, so it would really require some heavy-duty lifting (and not a little prognostication) for a president to line up the right case with the right judge (or "left" judge as the case may be) and have this coincide with a vacancy. District Court judges are subject to a six-year term I believe, so any damage there would be limited.

I respect your opinion. But I believe this is exactly the right tree for the Dems to be barking up. In reality however I doubt many of them will see Roberts' ethical lapse as important...to the further detriment of the Rule of Law and this country's future.

[Igel]

11. But the problem remains.

Let's rule out gaming the process--surely a possibility, character notwithstanding. I'm not sure a dem prez would be any less willing to use it if he wanted an extreme RW judge forced to recuse himself.
And if there are pre-existing cases, wouldn't the conflict of interest then reside in allowing the prez to pick the nominees?

There are probably hundreds of court cases involving the federal government before sitting judges. How do we decide which ones require either recusal or declaring the judge ineligible for interviews for a higher position? Is there some funky principle lurking that I can't discern? Or do we declare any case involving the federal government/president to trigger ineligibility?

The next prez is almost certainly to be a dem. Do we want to bind his hands and feet in this way, or just admit up front that we want the rules to depend on the (R) or (D) after the prez's name?

I see the process used to pick Roberts as showing a possible conflict of interest. But the fixes all seem to be worse.