The Crimson Tie: Why Judge Jackson May Have An Ethical Problem To Address

Below is my column in the Hill on the possible conflict of interest faced by Judge Ketanji Brown Jackson if she is confirmed to replace Justice Stephen Breyer. If Judge Jackson becomes Justice Jackson, her service on a Harvard governing board will be a barrier to her sitting on one of the most significant cases of the term. While the Harvard Crimson quotes Professor Noah Feldman as saying that there is a “strong argument that she would not need to recuse,” I cannot see how she could ethically sit in judgment on the case given her board position.

Here is the column:

The first major decision of Judge Ketanji Brown Jackson after her Supreme Court nomination may be to recuse herself from one of the most significant cases before the court. Indeed, it seems she will have little practical or ethical choice but to say that she will not participate in a case that could fundamentally change the use of race in college admissions.

The college admissions cases before the court have been much discussed since President Biden announced that he would consider only black females for the next vacancy on the court. Some of us immediately noted that Biden’s exclusionary criteria have been declared unconstitutional or unlawful by the court for schools and businesses; they also are unprecedentedunnecessary, and unfair to potential nominees. To make matters even more awkward, the new justice would sit on two cases raising the use of race in admissions to Harvard and the University of North Carolina.

Judge Jackson’s nomination magnified the controversy in an unexpected way. It appears that she serves on Harvard’s board of overseers, one of the university’s two governing boards. Since the board plays “an integral role in the governance of the university,” the questions involved in the case before the court would appear to fall within the board’s broad discretion.

Even before Jackson’s nomination, conservatives called for any eventual nominee to recuse herself from the Harvard case due to Biden’s threshold criteria. Jackson now makes that recusal an imperative due to her board membership.

Jackson should recuse herself from the case. The use of “should” is not meant to suggest any real question of the ethical choice to be made; rather, it reflects the court’s curious position on ethics matters. Justices have long maintained that lower court judges cannot sit in judgment of their own conduct, but the ethical rules are treated as discretionary for each justice. Although James Madison stated in Federalist 10 that “No man is allowed to be a judge in his own cause,” Supreme Court jurists have long demanded precisely that unilateral power in judging their own ethics.

For a lower court judge, this would be a no brainer. Canon 2 of the Judicial Code of Conduct instructs judges to avoid even the appearance of conflicts or bias. “An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s … impartiality as a judge is impaired.” Canon 3 states that “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” That includes cases where “the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”

This is more than the past controversy over the effective lock exercised by Harvard and Yale in graduates composing much of the court. The two schools have functioned as a virtual educational cartel, and Jackson will be only the latest such addition. (Chief Justice John Roberts and Justices Stephen BreyerElena Kagan, and Neil Gorsuch are all Harvard graduates). Being an alumnus is unlikely to prompt recusals, but being a member of a governing board is far more significant than the common Crimson tie.

Jackson not only has an institutional interest as a Harvard board member but likely has personal knowledge of admissions standards or policies from her service on this board.

It would be profoundly inappropriate for a jurist to sit on a case for a school in which she has held a governing position and a role in setting institutional policies. This would be akin to a justice sitting on a case on oil leases for Exxon while being a member of the oil company’s board of directors.

For that reason, Jackson will be asked in her confirmation hearing to confirm whether she will recuse herself from the Harvard case. The question is whether she will feel compelled to recuse herself from the North Carolina case too, since both are being considered jointly by the court. Critics are likely to object that recusal from the Harvard case alone would allow her to participate in potentially framing (or opposing) a new standard affecting both schools.

This is not the first time a nominee has been confronted with a recusal demand in a confirmation hearing — but it is one of the most credible such questions.

During the confirmation of Justice Amy Coney Barrett, Senate Majority Leader Chuck Schumer (D-N.Y.) and other senators, without justification, called for the nominee to recuse herself from any election challenges. I opposed recusal demands of Justice Sonia Sotomayor over her comments in a past case (although Sotomayor recently raised new questions, after publicly calling for political action in favor of abortion rights). Valid recusal demands were made of Justice Elena Kagan, given her role in some cases before the court as U.S. solicitor general.

Others, like the late Justice Thurgood Marshall, had to make the same decision to remove themselves from such cases. In fact, sitting justices have regularly tripped such wires due to conduct on the court. The late Justice Ruth Bader Ginsburg regularly raised questions by making political public comments or references to matters expected to come before the court.

This case is different, however. While this is not a barrier to confirmation, Jackson should remove the issue before confirmation with a pledge of recusal.

Jackson’s expected confirmation will not materially change the court’s balance, but it could have an impact in these cases. It is not clear how far the majority may be willing to go in these cases. For decades, the court has left this issue a muddle of conflicting and vague 5-4 rulings. Much of the division is based on the use of diversity rationales after the court ruled in 1978, in Regents of the University of California v. Bakke, that “preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.” Then-Justice Lewis Powell declared: “This the Constitution forbids.”

It did not, however, forbid the reliance on race as a factor for admissions, and it has struggled for decades with the weight given to that criteria. In 2003, in Grutter v. Bollinger, the court divided 5-4 on upholding admissions criteria used to achieve “diversity” in a class at Michigan Law School. In writing for the majority, then-Justice Sandra Day O’Connor stressed that she “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

The question is whether the time has arrived for the court to create a bright-line rule against the use of race in admissions or, alternatively, to further limit its use.

The loss of Justice Stephen Breyer — and the recusal of his replacement — would reduce the balance to six conservative and two liberal justices. That makes it less likely that the liberals would be able to secure a fractured plurality decision or a majority that preserves prior diversity rationales.

It would be a difficult concession for many liberals that Biden’s selection of a black female justice would actually reduce the votes determining the future use of race for admissions at colleges. Moreover, the first black female justice would not play a role in what could be the most consequential race-related case in decades.

Yet, it will be hard for liberals to argue that there is nothing wrong with her voting on the case. Solicitor General Elizabeth Prelogar recognized that she also had a conflict or appearance of a conflict in participating in the Harvard case; she taught a class at the university, and she was required to seek a waiver in light of that connection. There is a far greater expectation of recusal for a jurist who will be voting on the merits than an advocate whose administration already has aligned itself with Harvard’s position.

Much remains unknown about Jackson, who refused as an appellate nominee to answer questions about her judicial philosophy. Yet, before Judge Jackson establishes where she stands on judicial interpretation, she may have to establish where she stands on judicial ethics.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

132 thoughts on “The Crimson Tie: Why Judge Jackson May Have An Ethical Problem To Address”

  1. Once again, the United States must clean up the mess that another country has started.

  2. Did you see Lindsey Graham’s latest tweet calling for the assassination of Vladimir Putin? This, from a senior American ‘leader.’ On top of that, Joe Biden is gravely compromised by his family’s corrupt dealings in the Ukraine while he was Vice President. The senior Democrat leadership is up to their necks in the blowback from their corrupt transfer of uranium energy rights to their then best friend Vladimir Putin’s Russia and Uranium One in a deal engineered by Hillary Clinton.

    Reckless Lindsey Graham, corrupt Joe Biden and the other compromised politicians at the top of the US government need to removed from the levers of power immediately before they get us all killed in a war caused by their reckless rhetoric and self dealing.

    1. You’re right. But both the Biden Administration and the RINOs wanted this war. Graham’s statement wasn’t really “reckless” because he intended it to stoke the fires of war. And, of course, if not for the Biden Administration’s Energy Policy, which was originally designed to financially hurt Americans, Russia would not have had the financial backing for Russia’s war with Ukraine.

    2. Let’s be honest. Lindsay is a little buttboy to the established power elite. He talks tough but is a RINO weakling who survives on side deals and deception. I almost puked when I saw the video of him fist bumping camel toe. I can picture him in a Speedo at the Saudi souk where Arab traders yell Habibi as they bid to buy his narrow little booty.

  3. When all’s said and done, the real issue is whether Ketanji Brown Jackson would use her position to follow and interpret the law in a fair and impartial manner, or whether she would use her position to advance the leftist agenda. The evidence already weighs heavily toward the latter, given her record of being regularly overturned by the D.C. Circuit, including by some of the most leftist leaning judges in that circuit.

    On this point, the following questions should be asked:

    1. Do you believe that if you become a Supreme Court Justice that you will follow and interpret the law in a fair and impartial manner, or will you reach your decisions based on your political biases or predilections?
    2. Can you name a case or cases in which served as judge where the opinion or opinions you reached ran contrary to your own political biases or predilections?

    Of course, these questions are never asked of any Supreme Court nominee. Most senators, regardless of their politics, are simply shopping for a justice whose record they think most closely matches their own politics. They aren’t interested in a justice that genuinely follows and interprets the law in a fair and impartial manner. It’s as simple as that.

    1. And still another question that should be asked of all Supreme Court nominees:

      3. Do you agree with Elie Mystal’s views on the Constitution as expressed below? Why or why not?

    2. JFeldman, you should do a search for and then read my paper The Legal System Is Even WORSE Than Gambling! sometime. Or some of my other papers, such as The Three Magic Questions, Any Person Subject to…, The Scam Of The Legal System, The Holes In The Legal System and a few others too!

  4. If radiation from the nuclear power plant reaches NATO countries, that should be deemed an Article 5 attack. It was done with an intent to harm. Harming with radiation is Putin’s M.O., after all.

    1. Eastern Europe lies in the Westerlies, meaning it is far more likely that any such radiation like you described would be blown eastward towards Russia rather than to NATO members. Your point is may very well be valid, but methinks a damaged nuke plant would be far more detrimental to Putin’s people. Besides, there’s so much bad reporting now — by stupid people and by malevolent ones — one never knows what to believe regarding Russia v. Ukraine.

  5. Helping Ukraine with a supply of Javelins and NLAW missiles…how is this any different from helping Ukraine with airstrikes?
    Why doesn’t the former result in escalation and nuclear war, but the latter would??? The results are the same: blazing tanks.

  6. In her prior hearing maybe Jackson refused to answer a Q Re. her “judicial philosophy” because it’s embarrassing to admit the sum total of her philosophy comprises whatever appears in the progressive marching orders authored by her DNC overlords.

  7. The Russians have lied and deceived a million times so far. Why should they be trusted with any more negotiations and diplomacy? Is THIS the time that they promise to be honest?

  8. Turley Upholds Fox News Consensus That Jackson Is Not Bright Enough For Court

    When news broke that President Biden would have the chance to fulfill his promise to nominate the first Black female Supreme Court justice, conservatives shouted their objections. You will not be surprised that Fox News host Tucker Carlson is leading the charge. Here’s what he said on his program Wednesday night:

    “So is Kentaji Brown Jackson, a name that even Joe Biden has trouble pronouncing, one of the top legal minds in the entire country? We certainly hope so, it’s Biden’s right, appointing her is his one of his gravest constitutional duties. So it might be time for Joe Biden to let us know what Ketanji Brown Jackson’s LSAT score was. Wonder how she did on the LSATs, why won’t he tell us that?”

    We start with the unadorned racism of joking about Jackson’s name — she really isn’t like us, is she? — and then we move to the demand for documented proof that Jackson, whose qualifications are unquestionably stellar, is smart enough to be a Supreme Court justice.

    Needless to say, neither Carlson nor anyone else on the right demanded to see Brett M. Kavanaugh’s LSAT scores, or Amy Coney Barrett’s, or Neil M. Gorsuch’s. That those justices were perfectly smart was the default assumption, something that wasn’t even worth wondering about. Why, just look at them!

    This is something almost every person of color in politics faces sooner or later, no matter how brilliant and accomplished they are. Conservatives will claim that they’re unqualified and dumb, and that their markers of success, such as being editor of the Harvard Law Review (which Jackson was) or clerking on the Supreme Court (which Jackson did) are in fact not markers of success at all. Instead they’re proof of special and undeserved treatment due to race.

    Edited from:

    https://www.washingtonpost.com/opinions/2022/03/03/ugly-racist-attack/

    …………………………………………………………………………………

    The article notes that when Barack Obama was running for president, Donald Trump was among those demanding to see Obama’s academic record. Yet that same Donald Trump threatened to sue his own alma mater, the University Of Pennsylvania, if they released ‘his’ records to curious journalists.

    1. So you deny that Jackson is an affirmative action appointment? So you’re saying that a job opening excluding all male, non-black applicants (estimate 75% of potential applicants is legal and insures a good and competent pool of applicants? Please show your math.

      If she’s so bright, explain her reply to a racist, dog whistle, illegal job announcement, esp. now knowing she has to recuse from the biggest progressive race case in several decades. And what does the last point say Re. progressive Biden’s level of incompetence and that of his staff who oversaw this announcement?

      1. REGARDING ABOVE:

        The commenter using Anon’s name is our Pro-Putin blog stooge who Fields endless puppets every day.

        1. Says the warmonger who welcomes nuclear winter and/or $8/gal gas, economic winter for the West, endless war debt, endless riches for the MIC, death, destruction, censorship, etc.

          Hint: it’s OK for Ukraine to surrender except to warmongers like the above poster.

          If you want to defend Ukraine to there, pick up a gun and start shooting you reckless hypocritical chicken hawk.

      2. There was no job announcement. This is a SCOTUS nomination, and the Constitution allows the President to nominate whoever he wants.

        If you dislike that, nothing is stopping you from trying to amend the Constitution, but I highly doubt that you’ll get anywhere with such an effort.

        The fact remains that Tucker Carlson demanding her LSAT scores is just a dog whistle. No nominees produce them.

        1. “The fact remains” that she was chosen because of her race and her sex.

          And the fact remains that that is racism and sexism.

          And the fact remains that when the Left uses racism and sexism, that’s okay because their goals are “noble.”

          1. She was partly chosen on the basis of race and sex, just like most of the white men who’ve served as Justices over the years. But mostly she was chosen because of her strong qualifications.

            As for your opinions, don’t pretend that they’re facts.

            1. “As for your opinions, don’t pretend that they’re facts.”

              As for your opinions about opinions, don’t pretend that they’re facts — ad infinitum, until you are reduced to a vegetable. (HT: Aristotle)

              That incessant tagline of yours is textbook sophism and skepticism. As such, it deserves to be dismissed without consideration.

        2. Says the poster who is proud of living in a nation in which respected and well-known Federal hiring laws don’t apply to those who are ordered to enforce those same laws.

          So you’d be OK with the President announcing no blacks nor women apply for SCOTUS? If not then you’re the purest form of hypocrite.

          Only another Demonkraut like the above poster would approve of POTUS breaking the law which he did. The fact that the Demonkrautz whom run the entire Federal government, ignore the law does not mean it’s not a crime. If that was true than every uncharged crime is not a crime.

          1. Biden’s nomination hasn’t broken any law, and someone who refers to “Demonkrauts” isn’t worth taking seriously.

    2. “This is something almost every person of color in politics faces sooner or later . . .”

      That might be true, and not just in politics.

      And for that (unjust) tainting, you can blame the Left for smearing everything with race — via “diversity,” “equity,” and affirmative action.

      The Left keeps spreading race-based policies, then is (allegedly) shocked when people wonder whether race was involved in selecting a person for a particular position.

      If you detest that tainting, then reject your race-based policies and ideology.

  9. Old as dirt and looks like it to, with loose dentures and all Nancy PEE-loosi: “I DON’T CARE IF JOE’S TAKING HIS 2ND NAP! WAKE THAT HALF DEAD WHITE FRANKENSTEIN UP, GIVE IT SOME OXYGEN AND TELL IT IT NEEDS TO WITHDRAW JACKSON’S NAME RIGHT NOW! DOESN’T JOE HAVE ANY POLITICAL AIDES WITH AN IQ ABOVE ROOM TEMPERATURE?”

  10. This might be a pipe dream, but it would be nice if universities would stop systemic racism against Asians and whites.

    It’s ironic that the Left decries systemic racism, yet they are the ones who enacted it in the past days of Jim Crow, and reenacted it with bias against whites, Asians, as well as bigotry against males, heteronormative people, women who support biological women in women’s sports…The list goes on.

    Not much has changed since the KKK, except the hoods.

  11. Turley Invites Commenters To Engage In Hate Speech

    S.Meyer says: March 3, 2022 at 11:17 AM

    Judge Jackson is a leftist. She belongs in the category of pigs, and in a piggish way, she can adapt to a world with rules that pigs are excluded from. She knows “what’s best for you, better than you do yourself.”

    ………………………………………………………………

    Meyer’s assessment of Judge Jackson is, at the very least, over-the-top, manufactured outrage. However one could frame it as racist hate speech in the context that nothing about Judge Jackson warrants any comparison to ‘pigs’.

    Yet for the past 2 weeks Johnathan Turley has repeatedly suggested that Judge Jackson is somehow ‘unqualified’ to sit on the court. Yet Jackson’s career experience certainly gives her the pedigree of any Supreme Court nominee.

    Judge Jackson is a Harvard grad who clerked for Justice Beyer, spent 2 years as a Federal Public Defender and 7 years on the bench of the U.S. District Court for the District of Columbia (in addition to many other jobs). During her years on the District Court, Jackson wrote more than 500 legal opinions. Opinions that were reversed less than 12 times.

    In her 2 years as a Federal Public Defender, Jackson accumulated a wealth of experience in real court trials. Not all members of the Supreme Court have that experience.

    When Johnathan Turley tells us that Judge Jackson is ‘unqualified’ he really means Judge Jackson incurred the wrath of Trumpers.

    …………………………………………………………………

    From the Wikipedia Bio on Judge Jackson:

    During her time on the District Court, Jackson wrote multiple decisions adverse to the positions of the Trump administration. In her opinion ordering Trump’s former White House counsel Donald McGahn to comply with a legislative subpoena, she wrote “presidents are not kings”. Jackson handled a number of challenges to executive agency actions that raised questions of administrative law. She also issued rulings in several cases that gained particular political attention.

    In 2019, Jackson ruled that provisions in three Trump executive orders conflicted with federal employee rights to collective bargaining. Her decision was reversed unanimously by the D.C. Circuit. Another 2019 decision, involving a challenge to a Department of Homeland Security decision to expand the agency’s definition of which noncitizens could be deported, was also reversed by the D.C. Circuit. Nan Aron, president of the liberal Alliance for Justice, defended Jackson’s record, saying Jackson “has written nearly 600 opinions and been reversed less than twelve times”

    https://en.wikipedia.org/wiki/Ketanji_Brown_Jackson

      1. Honestlawyer,

        What a lame excuse of an explanation! Like we’re supposed to agree that Jackson is ‘obviously’ an Orwellian character. Therefore calling her a ‘pig’ is perfectly appropriate.

    1. Anonymous the Stupid, by this time, you should have read Animal Farm and understood what the two quotes mean. Maybe you did read it, but you desire to be one of the pigs. Nothing I said is racist. Nothing I said isn’t true. I don’t care that she is black (I don’t even think I mentioned race.) though I do care that Biden tainted a Supreme Court Justice even before the appointment. That was a stupid move, but you fit in well with stupid moves because you are Anonymous the Stupid.

      You are a racist, so you assume that any criticism of her is racist because she is black. I guess you believe that blacks can’t get anywhere without your help. They can, and the most productive ones don’t want your help. They prefer for you to leave them alone.

      1. Alan, your tortured, convoluted reference to “Animal Farm” is strictly for the stupidest of Trumpers. In a normal America, almost anyone would think you’re really calling Judge Jackson a ‘pig’.

        For the past couple weeks Vladimir Putin keeps referring to President Zelensky as a ‘nazi’. Never mind that Zelensky is Jewish! Yet you’re applying the same twisted logic to Judge Jackson. Somehow she’s the pig from “Animal Farm for being ideologically liberal ‘because there’s only a razor thin line between liberals and communists’. Only a cretin would buy that logic. And only a cretin would expect casual readers to grasp such demented reasoning.

        1. Anonymous the Stupid, I can’t help that you still don’t get the reference to Animal Farm. That you don’t recognize the quote “I know what’s best for you, better than you do yourself.” is based on your ignorance and no one else’s. If you missed that one, then the quote “all animals are equal, but some animals are more equal than others” should have tipped you off. I’ll provide another quote from the book, “Four legs good, two legs bad.” Jackson has two legs, but a person who only thinks in racist terms can’t link up the ideas contained in a book to real life. That is why I named you Anonymous the Stupid, while others shortened it to ATS.

          I note your change in subject to Ukraine and your analogies which make little sense. You also claim Jewish heritage, but your ideas sound like a combination of Nazism, Stalinism and Maoism. You lack a moral spine, so you slither like a snake rather than stand upright like a human being.

          1. Allan the Chihuahua again demonstrates that he cannot tell people apart and refers to multiple people as “Anonymous the Stupid.”

            1. It has been proven repeatedly that you act a certain way, and it is recognizable. The last time you denied it, I proved you wrong based on what you said and I already wrote. Still another time, I showed how you were using pretend friends to cancel your comments along with everyone else’s that followed. I predicted the comments to be deleted. https://jonathanturley.org/2022/01/10/the-vaccine-mandates-the-supreme-court-considers-a-trip-to-major-questions-land/comment-page-1/#comment-2150023

              You are non-credible and a liar. You are Anonymous the Stupid

              1. No, the person who wrote the 10:54 AM comment is different than the one who wrote the 12:05 AM comment, yet you call both of them “Anonymous the Stupid.” You can’t tell people apart. You even confuse people when they use different names (as when you confused Svelaz with someone else). You are the Liar and Stupid person you endlessly complain about.

                1. You interpreted my original comment regarding pigs and Animal Farm in the typical Anonymous the Stupid fashion. The 12:05 comment was more or less a comment mimicking your prior stupidity. No matter who wrote it, it represents your reptilian type of intelligence.\

                  In this one case, I may have responded too quickly for even you suggested who may have written it. I agree with you. Do you know what that proves? It proves that you are more transparent than you think you are and that I am likely correct almost all the time. I have proven that several times in the past already. Sometimes you pretend that an error was made when it wasn’t, but I suspect you are right this time. Our likely agreement as to the writer demonstrates how dumb that guy is.

      2. You must remember Hahvidians ah above the law. ‘Frinstance the “Lyin of the Senate” cheated on his bah exams. “Voila we get a Kennedy School Of Government and all is well. Justice Kagan wrote Obama Care and then judged its constitutionality. You are just unaware uv how greatful we shud be to have these plyers of caca to hep us along. Whar wud we be without em

      3. When “equality of outcome” becomes the criterion for supreme court selectees, you get the justice system you deserve.

  12. Wrong is wrong is wrong, regardless of how much weaponry the wrongdoers have to defend their wrong-doing.

Leave a Reply