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. Putin regime should be considered a terrorist organization and state sponsor of terrorism. How egrigious must it become before the West won’t weasel out of doing something about it?

    1. The West has been doing quite a lot: financial sanctions, weapons, political pressure, disallowing use of air space, accepting refugees, and more.

  2. “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.”

    – Professor Turley

    Madison et al. used undifferentiated references – people, men, person, candidate, member, Justice, judge, Congressman, Senator, President, etc. – in the Constitution, denying favor or affirmative action, and causing the act of applying and affording bias to be impracticable, nonfunctional, illegitimate and unconstitutional.

    Judge Ketanji Brown Jackson, a beneficiary of antithetical, illicit and unconstitutional affirmative action, must not be provided an opportunity to recuse herself as a Harvard governing board member from sitting on two cases raising the use of race in admissions to Harvard and the University of North Carolina.

    Judge Ketanji Brown Jackson must be rejected by the Senate as a beneficiary of the aforementioned bias of affirmative action.

  3. I guess no one has the cajones to raise the issue of Biden’s exclusion of white men or women (among others) for his nomination to the Supreme Court in violation of the Civil Rights Act of 1964.

    1. It isn’t in violation of the Civil Rights Act, as the Civil Rights Act doesn’t apply to SCOTUS nominations. The President can pretty much nominate whoever he wants, subject only to the restrictions placed by the Constitution.

      1. Civil Rights law does not exempt anyone including SCOTUS. You claim that SCOTUS itself is above the law which is a big fat lie. Type the quote with the link or you lie just like every other politician including Biden. If you approve of Biden announcing that no men nor non-blacks need apply, then by definition you approve of a POTUS announcing that all blacks and all women need not apply. Which you’d cry bloody murder if the latter occurred and everyone reading this including you knows it.

        But you did well to mix in a little truth with your big fat lie the way all good and efficient liars are trained to do. Biden can nominate anyone he wants, true. HE JUST CAN’T LEGALLY ANNOUNCE THAT ALL MEN AND ALL NON-BLACKS ARE BARRED FROM CONSIDERATION, WHICH IS A CRIME.

  4. Turley loves to play little games in carrying out his assignment to trash Biden and the decisions he makes. Turley admits he doesn’t know whether the Board on which Jackson sits has anything to do with race in admissions at Harvard: “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.” What is that “integral role”? Turley doesn’t know whether it includes promulgating policies on race in admissions decisions.

    Does the fact that Turley really can’t say whether Jackson’s Board has anything whatsoever to do with admissions policies stop him from publishing today’s little trash piece? No. Turley knows the disciples probably won’t notice, much less think about his little qualifier highlighted above, but he put in the qualifier so no one could say later on that he falsely accused Judge Jackson of a conflict. Your bull is getting tiresome, Turley.

  5. Judge Jackson need not recuse herself, nor must she stand behind the Constitution. Why? The answer is clear.

    “all animals are equal but some animals are more equal than others.”

    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.”

  6. Really Turley? You’re going to write about ethical problems, and if you were to really address ethical problems and told the truth about the Trump administration, your written post would go on for days. How about his lawyers to start? How about Justice Thomas? Scalia died at a hunting cabin where he was to hear a case about one of the men in the hunting cabin.

  7. (OT)

    Major legal news from last night. Will Turley address it?

    “Trump and right-wing lawyer [John Eastman] were part of ‘criminal conspiracy’ to overturn 2020 election, January 6 committee alleges”

    Also yesterday, one of the Oath Keepers pleaded guilty to seditious conspiracy and obstruction and is cooperating with the DOJ.

    1. January 6th Committee:
      “The facts we’ve gathered strongly suggest that Dr. Eastman’s emails may show that he helped Donald Trump advance a corrupt scheme to obstruct the counting of electoral college ballots and a conspiracy to impede the transfer of power.”

      Recall that there is a crime-fraud exception to attorney-client privilege.

      Here’s hoping that the DOJ acts on their information.

      Trump’s lawyer, John Eastman, sure does plead the 5th a lot:

      And here’s his email exchanges with Pence’s lawyer, where Eastman blames Pence for the Jan. 6 “siege”:

    2. This comment is from a conspiracy theorist who lacks facts. He can link but he can’t figure out what the link is saying.

      1. Since when have facts mattered to the left, it’s always all about the message – whether truthful or not.

        1. I’m on the left, and facts matter a great deal to me.

          The Jan. 6 Committee included a number of facts in their filings. For example, it’s a fact that Eastman and Pence’s lawyer (Gregory Jacob) had the email exchange in Exhibit N.

          In that exchange, Eastman implores Jacob to consider a “minor violation” of the Electoral Count Act and Jacob says that “thanks to your bullsh*t, we are now under siege.” I encourage you to read that exchange.

        1. Anonymous the stupid, we were discussing the fact that you are unable to think. Is the Chihuahua helping you? You seem calmer.

          1. Nah, Allan, we were discussing the fact that you have nothing but an impotent little bark, and you run around yapping like a little chihuahua.

            1. Chihuahua’s are wonderful dogs. You think your use of the Chihuahua makes you sound smart. It doesn’t. It clarifies why you are called Anonymous the Stupid. You couldn’t come up with anything better. Anyhow, I like dogs, and the Chihuahua is a fine animal with a better pedigree and more intelligence than you will ever have.

    3. And I would hope as much due diligence will be applied to the voting antics of the dem party for that 2020 election. After all, what is good for the goose is good for the gander.

      1. If you have evidence of the Democratic Party having broken any laws, you should contact law enforcement.

        1. Ex-Illinois Speaker Michael Madigan indicted on federal racketeering charges
          Madigan served as Illinois House Speaker for nearly four decades.

          “… on federal racketeering charges, alleging that he and his associates profited off of his powerful political operation. …The 22-county indictment, originally reported on by The Chicago Tribune, …Madigan’s longtime confidant, former state legislator and lobbyist Michael McClain was also charged in the indictment, which alleges he participated in an orchestrated bribery scheme.”

      1. There is no theft. I’m using a small part of what he freely offers.

        1. Without commenting on whether or not there was theft, you don’t seem to understand the concept of theft. Stealing a little or a lot is theft.

            1. All sorts of things can be stolen, big, small, important or inconsequential, but no matter the nature of the thing stolen, it is still stolen.

              Leftists have a problem determining what is theirs and someone else’s.

    4. Continuously for the last 14 months the DNC has co-controlled the DOJ, FBI and ditto the District of NY prosecutor’s office is controlled by an avowed and extra-ordinary Trump-hater. And none have charged Trump nor his crew with any crimes. But if you and your CNN/MSNBC viewing friends hold your collective breaths long enough and cry and pout and scream and stomp your feet, then a magic genie shall appear and grant your wishes for Trump to be tossed into jail forever.

      And monkeys may fly out my rear end…

      Frankly, as a Trump hater I hope he does go to jail. But to say your expectations are ridiculous is too generous.

    1. To this commenter, everything questioning his ideology is a matter of opinion. Are theft and murder bad? That is a matter of opinion or whatever nonsense he wishes to say.

  8. Turley: “I cannot see how she could ethically sit in judgment on the case given her board position.”


    I suspect many Democrats regard her ethical conflicts as additional points in her favor. Mention them again and you will be pegged as a racist.

  9. I suggest that all justices comes from the the PAC-12, Big 10 and SEC.

    1. Paul — au contraire– did you forget that we have produced such fine jurists as Roy Bean? He certainly was not a racist. He hung them all– Anglos, Mexicans, blacks– without regard to race or crime. I would expand it to include the Big 12.

      1. honestlawyermostly – I am happy to include the Big 12, however I thought Judge Roy Bean was self-taught. 😉

          1. Looking at some of their decisions, you would swear that some of the justices are self-taught over the space of 6 months. 😉

  10. Jackson will obfuscate and dodge at her hearings and then WILL NOT recuse herself. The left deems politics war and they play for keeps as the right treats politics as they would handle a debate between Oxford and Cambridge.

  11. Should Clarence Thomas recuse himself from the same case where his wife sits on a board of a group that has supported one side? Sure, a wife has a right to have her own opinions and activities, but she took it further in another case by writing privately to Justice Thomas’s former law clerks (for which she was forced to apologize). Scalia and Thomas spoke to groups with business before the court. All the examples in Turley’s column are of when left-leaning justices should recuse. Has he ever suggested anyone on the right recuse, or is his pretense of even-handedness a sham?

    1. The only problem that I find with the left is that they will use their leverages (wherever they find them) for the ultimate destruction of the US of the founding fathers and Western civilization in total. Our form of government should not be used for that purpose, if progressives so dislike this nation and culture they are free to emigrate to such venues as encompass their world ideologies,.

      1. Ala, Progressives have contempt for our nation. They demean it and weaken it both economically and militarily. That creates contempt towards America and America’s standing as a super power. Biden has accelerated the contempt to the point that Russia attacked Ukraine.

        We are our own worst enemy. We saw all of this happening before WW2 but only temporarily learned our lessons. Today we have made ourselves super vulnerable. We can see that in our exit from Afghanistan and Russia’s invasion of Ukraine.

      2. Alma, how is that a response to my question about Clarence Thomas? How can you only blame the left for things the right does just as well or better? Inquiring minds want to know.

        1. Your problem is that you don’t want to know. Study what actually happened with Joe Biden and the approval of judges. Start with pre-Bork when Scalia was confirmed with close to 100%. Then go to Joe Biden and Bork. Take note of the change. You play victim all the time, no matter what the subject matter. As a victim, every fact that disproves your theories is another unfair attack on you. Facts matter. Victimhood is an excuse not to recognize facts.

          1. The vote against Bork was bipartisan. The vacancy was ultimately filled by Anthony Kennedy, who was unanimously confirmed.

            1. A very few Republicans voted against him. Before the onslaught, even the ABA thought Bork was brilliant. The left started this mess but didn’t want to take credit for it.

            1. Joe Biden Owes Clarence Thomas an Apology

              Judge Clarence Thomas at his Senate Judiciary Committee hearing in 1991 (via C-SPAN)
              As chairman of the Senate Judiciary Committee, he turned the confirmation hearings into a smear-fest, even in the absence of evidence to support Anita Hill’s allegations.


              How Joe Biden Wrecked the Judicial Confirmation Process
              The vice president can’t complain if Republicans object to Obama’s Supreme Court nominee.


                1. You have resorted to name-calling. You can’t deal with the facts presented by two different articles, one from the WSJ and the other National Review. Do you wish more references, or do you think your closed mind makes things go away?

                    1. Yes, Enigma, that’s S. Meyer posting anonymously, and he’s a hypocritical troll. He insults people all the time.

                    2. “Yes, Enigma, that’s S. Meyer posting anonymously”

                      No matter who is posting, there is no record of Enigma being called an idiot recently. Enigma may have been honestly mistaken, but you are not. You want to bash and insult everyone, including the moderator.

                    3. “Troll (Didn’t you call me an idiot a few posts ago?) Hypocritical troll!”

                      Enigma, I don’t remember anyone calling you an idiot. I don’t think you are, but anything is possible. Can you provide the post, a date or the op-ed? I did a recent word search and couldn’t find such a comment directed at you.

                    4. “(Didn’t you call me an idiot a few posts ago?) “

                      That is a week ago (hundreds of posts ago) not a few posts ago. I found it and it wasn’t me. The name was Rico followed by anonymous (likely Rico). If I called you an idiot I would repeat it .

                      In any event, don’t you think you should have placed the words ” Are you happy now, idiot?” in quotes unless you are repeating the statement made by anonymous and not quoting him?

                    5. I only respond to trolling, I never respond to his responses to anyone else as he does me, I am only aware of his existence when he follows me. I’ve found it impossible to engage in a reasonable conversation because by two to three exchanges he goes off into ridiculous accusations. When he does what he does, I acknowledge him as a troll. My goal is that he gives up but as a troll he’ll be unable to do so. I’ll just know it’s driving him crazy.

                    6. Enigma, some of us follow ideas, not people. Your ideas are very sharp and, with a broad base, associate many people with racism. That is your shtick, that and your victimhood. Why do you believe such ideas condemning others should be permitted to stand to make you feel better about yourself? Many of the responses to you were excerpts from articles (WSJ) disputing your words. You don’t bother to show why your words should prevail. Instead, you insult and even insult for the wrong reasons.

                    7. Enigma, the culture of victimhood, surrounds your thinking. Victimhood weakens the individual and makes him ill-prepared for the fundamental challenges of life. While you play Victim, you take attention away from all those who are legitimate victims.

                      Troll is your knee-jerk response to anyone or any research questioning victimhood.

                    8. “Troll is your knee-jerk response to anyone or any research questioning victimhood.”

                      Only you, troll.

                      I don’t claim victimhood. Have you finally rejected that claim?

                    9. Says a troll while calling someone names.

                      “Signs Someone Is Trolling
                      It can sometimes become difficult to tell the difference between a troll and someone who just genuinely wants to argue about a topic. However, here are a few tell-tale signs that someone is actively trolling.

                      Off-topic remarks: Completely going off-topic from the subject at hand. This is done to annoy and disrupt other posters.
                      Refusal to acknowledge evidence: Even when presented with hard, cold facts, they ignore this and pretend like they never saw it.
                      Dismissive, condescending tone: An early indicator of a troll was that they would ask an angry responder, “Why you mad, bro?” This is a method done to provoke someone even more, as a way of dismissing their argument altogether.
                      Seeming obliviousness: They seem oblivious that most people are in disagreement with them. Also, trolls rarely get mad or provoked.”

                    10. “Refusal to acknowledge evidence:”

                      That is you. I provided you with two articles absent any comment that disputed what you said. That was on topic and came from credible sources regarding the issue at hand, one being the WSJ. You resorted to name-calling.

                      You are on a blog where anyone can respond to anyone else. You wish to set the rules of the blog to benefit yourself. Why would you want to do that? Victimhood?

                    11. Enigma that is fine with me. I want substantive discussion, something you are unwilling to offer. I respond to you only to set things right. I provided you with plenty of information for you to criticize and dispute. You were unable because it would turn many of your ideas upside down.

  12. Simple: When Judge Ketanji Brown Jackson joins the 9-Little Law-Firms and becomes Justice Jackson,
    She Recuses herself, then She’ll simply have one of her Paralegals (excuse me, Clerks) send over her Opinion(s) to the Others (Justices Clerks) and kibitz.

    Maybe she’ll go down to the Capitol Subway Cafeteria and chat her views to the Clerk Grapevine, or just discuss it in the Court’s Restroom mono-e-mono while taking their morning Constitution. Believe me me – that happens.

  13. The Professor seems to think that would somehow be a deterrent for her, because he is projecting his own values. I share his values, but she wouldn’t be who she is in the first place if *she* cared one whit. She doesn’t care. The Dems don’t care. Their constituents (chant with me) *don’t care*.

    Still, I’m grateful he wrote this post and said it out loud.

  14. I suggest a new criteria for Supreme Court Justice selections. They can only be graduates of law schools from Universities in the Big Ten and the SEC. That should give the pundits a real football to toss around. I demand equity.

    1. I would suggest the selections not have any attachments to the east or west coasts, Harvard or Yale. The fairest minds in the land do not necessarily come from the biggest cities where might makes right or the Ivy league where people learn how to lie so that other people don’t recognize the lies coming from their mouths.

  15. Democrats who as a Justice scoff at the Rule of Law and the Constitution and instead legislate from the Bench at Lower Courts will not Recuse themselves from any case.

    Professor Turley as usual tries to. polish a Dog Dropping as he tries to talk about Ethics of Leftists.

    A good example of this lack of Ethical Standards can be seen in two Justices on the North Carolina State Supreme Court who should have Recused themselves from the ongoing Election Map Cases……but did not.

  16. you still democrats believe in the law? LOL
    They don’t! They want MONEY…and the power that gets them Money!

  17. Canons to the right of me. Canons to the left of me.
    Canons that can’t shoot
    Cannons with two n letters.

    Once she is appointed she should get off the friggin board at Harvard.

    1. that makes you a racist… Democrats now can use that hammer…regardless of mertit. The USA is Germany 1930’s with Democrats being the ruling socialists! Replace Jew with Racist!

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