Silver Bullet

From Holden:

This is a pretty compelling argument for keeping John Roberts out of the Supreme Court.

The White House broke the law when it interviewed D.C. Circuit Judge John G. Roberts last spring for the Supreme Court as he heard a challenge to the president’s military tribunals, three legal ethicists said yesterday.

Roberts, nominated by President George W. Bush on July 19, should have recused himself from Hamdan v. Rumsfeld to avoid an “appearance of partiality,” the professors said in the online magazine Slate.

“Federal law deems public trust in the courts so critical that it requires judges to step aside if their ‘impartiality might reasonably be questioned,’ even if the judge is completely impartial as a matter of fact,” wrote Stephen Gillers, David Luban and Steven Lubet.

White House spokeswoman Dana Perino dismissed the article. “There was no conflict whatsoever,” she said.

The article changed the mind of Hofstra University law professor Monroe Freedman, who at first backed the White House. He said Roberts probably broke the law but that it wasn’t enough to disqualify him from the high court. [Holden Note: Yeah, right. There’s no better qualification for the SCOTUS than violating a federal law regarding judicial impartiality.]


The Slate article said if one side in a case “can secretly approach the judge about a dream job while the case is still under active consideration,” trust in the judiciary suffers because it’s not clear how the offer affected the judge’s decision.

Sen. Charles Schumer (D-N.Y.), who will question Roberts in confirmation hearings next month, said Roberts should explain” as soon as possible” why he continued hearing the case.

Gillers, a legal ethicist at New York University Law School, saw no problem when Newsday told him in July that Bush met with Roberts about the vacancy July 15, the same day the D.C. court ruled 3-0 in Bush’s favor in Hamdan.

But Gillers told Newsday yesterday he changed his mind after Roberts disclosed the White House interviews in his Senate questionnaire Aug. 2.

He said Attorney General Alberto Gonzales interviewed him April 1, six days before oral arguments in the Salim Ahmed Hamdan case.

Look for Salim Ahmed Hamdan’s lawyers to appeal becaue one of the judges in his case was bought-off with a job offer.