Legal experts say that Biden’s Supreme Court nominee, Ketanji Brown Jackson, has an obvious conflict of interest if she were to rule on a pending challenge to Harvard University’s race-based admissions policies, and should recuse herself from hearing the case, because she has sat on a Harvard governing board. But there is no enforcement mechanism to make her recuse herself, so will likely participate in ruling on the case despite that conflict of interest. Since Brown Jackson is a Democrat and the Senate is controlled by Democrats, she is expected to be confirmed to the Supreme Court, even though she was the most left-wing judge on President Biden’s shortlist of judges for potential appointment to the Supreme Court.
The College Fix reports:
legal experts within academia have told The College Fix that Judge Ketanji Brown Jackson, President Joe Biden’s nominee for the U.S. Supreme Court should, if confirmed, recuse herself from a lawsuit challenging Harvard University’s controversial admissions policy.
Since 2016, Jackson has sat on the Harvard Board of Overseers, one of the school’s two governing boards. According to the Board of Overseers website, members provide “counsel to the University’s leadership on priorities, plans, and strategic initiatives.”
But some are concerned that if Jackson is confirmed, she would be eligible to rule on an upcoming case that charges Harvard with racial discrimination against Asians in its admissions process.
“Recusal in the case would seem obvious, even though justices treat judicial ethical rules as discretionary,” George Washington University Law Professor Jonathan Turley told The College Fix in an email Monday. “Membership on the board would seem a direct and unavoidable conflict of interest.”
“In the very least, it constitutes the appearance of such a conflict,” Turley said. “I cannot see how Jackson could ethically sit in judgment on the case when she has held a board position that oversees the university, including its admissions policies and practices.”
Ed Whelan, a distinguished senior fellow of the Ethics and Public Policy Center and former clerk for Justice Antonin Scalia, told The Fix that Jackson’s position at Harvard could cause problems for her.
“It seems to me that the case for her recusal is compelling,” Whelan said.
University of Wisconsin-Madison Political Science Professor Ryan Owens, who studies the U.S. court system, said he also believes recusal would be warranted.
“She likely ought to recuse herself from the case,” said Owens in a phone interview with The Fix….
In 2016, Justice Elena Kagan was criticized for her non-recusal in a case seeking to overturn the Affordable Care Act, commonly referred to as “Obamacare.”
Her opponents argued Kagan had a duty to recuse herself because in her previous role as solicitor general, she had crafted arguments defending the health care law. Nonetheless, Kagan remained on the case.
Owens said Kagan should have recused herself. “That was a big no-no,’” he said.
But Louis Virelli, a law professor at Stetson University who has written a book on recusal, said the issue of Jackson’s recusal is more complicated.
In a phone interview, Virelli told The Fix he believes Jackson could run afoul of the federal statute that requires recusal if a conflict of interest causes a reasonable person to believe there is an appearance of impartiality. “That strikes me as the one that would be most powerful with respect to Judge Jackson in this case,” he said.