Why Judge Jackson Needs to Recuse Herself in the Harvard Case: A Response to Noah Feldman et al.

In an earlier column, I wrote about what I saw as an insurmountable conflict of interest for Judge Ketanji Brown Jackson if she is confirmed to the Supreme Court. One of the most important cases on the Court’s calendar is a racial discrimination case involving Harvard admissions policies. I was surprised, therefore, to read that Harvard Law Professor Noah Feldman and others believe that Jackson has strong arguments against any recusal in the case. I wanted to address those arguments in greater detail.

I still see no alternative for Judge Jackson but to recuse herself from the case. Indeed, I respectfully disagree with the arguments put forward by these professors, which seem either circular or conflicted.

The Feldman Position

Professor Feldman maintains “there would be a strong argument that she would not need to recuse” as a justice. He argues that “on the Board of Overseers, neither she nor the other overseers would have had definitive say over the admissions process at the University.”

As some of you may recall, this is obviously not the first disagreement that I have had with Professor Feldman who testified during the first Trump impeachment. I also disagreed with him on an earlier conflict of interest controversy when Professor Feldman took a more expansive view of recusal on whether Amy Coney Barrett would have to recuse herself from any election case. The reason was that Trump declared months earlier that he wanted a full nine-member court in place by the election because “I think this (election) will end up in the Supreme Court, and I think it’s very important that we have nine justices … having a 4-4 situation is not a good situation.”  Professor Feldman insisted that “the important issue for recusal is not only – or even primarily – whether the justice can trust herself to be fair. It’s whether the public can reasonably and legitimately expect fairness. As the federal recusal statute makes clear, recusal is proper where a judge’s “impartiality might reasonably be questioned.”

I confess that I find Professor Feldman’s current view as baffling. Judge Jackson served on the board since 2016, which overlaps with this litigation and the underlying policy. It is not surprising that the board does not have a “definitive say over the admissions process.” However, others have noted that
“the board historically has advised the university administration on admissions policies.”

The board bills itself as a governing body with overarching policy authority:

“The Board of Overseers of Harvard University is critical to the governance of Harvard. As a member of the Board, each Overseer is expected to advance the interests of the University as a whole, taking into account interests of various constituencies while recognizing that a board member’s paramount responsibility is to the University rather than to particular schools, departments, programs, or individuals.”

The board is further described in this way by Harvard:

“The Board of Overseers is one of Harvard’s two governing boards, along with the President and Fellows, also known as the Corporation. The board directs the visitation process, the primary means for periodic external assessment of Harvard’s Schools and departments. Through its array of standing committees and the roughly 50 visiting committees that report to them, the board probes the quality of Harvard’s programs and assures that the University remains true to its charter as a place of learning. More generally, drawing on its members’ diverse experiences and expertise, the board provides counsel to the University’s leadership on priorities, plans, and strategic initiatives. It also has the power of consent to certain actions, such as the election of Corporation members.”

As I discussed in my column, “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.” An Exxon board member also does not make direct decisions on leases but plays an important institutional role.

What is most striking is that this relationship is far beyond what is required for a recusal or a waiver in government service. Indeed, 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. She was required to seek a waiver for a connection that is far more substantial than serving on the board. That guideline includes involvement in a case where the person has had “a business, contractual or other financial relationship” or where “an organization which an employee now serves or has served, as an employee or in another capacity, within the past year.”

Rule 2.11 on disqualification says that a judge should recuse when “the judge’s impartiality might reasonably be questioned.” I think that there are ample and reasonable questions raised by this board membership.

 For those reasons, I cannot agree with Professor Feldman’s view that there are strong arguments against recusal. In fairness, however, he also recognized that recusal may be appropriate due to the appearance of a conflict.

The Virelli Position

I was also struck by the comments of Louis Virelli, a law professor at Stetson University, who told the site College Fix that Judge Jackson’s refusal to recuse “would be strengthened if she could show she played no role in formulating the admissions policy.” I again fail to see that determinative factor. Judge Jackson has been sitting on a governing board with broad jurisdiction over policies and practices at the university during this period of litigation.

Professor Virelli also noted that since there are two questions presented, Jackson needs only recuse from one question and could still rule on the first question “whether the Court should overturn its precedents on race-conscious admissions policies.”

The specific question (which is identical in both cases) is:

“Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions.”

Many would see such a partial recusal as a superficial compliance with the rule. It raises more questions of how to draw the line between legal and factual determinations. The first question is material to the Harvard case and the university’s policies being upheld. Indeed, the Court did not have to separate the questions. For example, what if there was just the second question?

“Whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.”

In order to answer that question, the Court would still have to consider existing precedent. Could Jackson just rule on the sections dealing with prior precedent while recusing from the application of the new standard? The Court can change or overturn precedent without formally dividing the review into separate questions. These are often mixed questions of law and fact in such cases.

Virelli is also quoted as saying “I don’t think the conflict is strong enough to justify reducing the court to eight members to resolve such a high-profile national issue.” Again, I do not understand the ethical standard being drawn. If recusal is warranted, it is not less warranted because the case is more important. If you have a conflict of interest, the recusal is based on your status, not the significance of the case.  Moreover, any recusal could be refused because it is inconvenient or risks a deadlock. Ethical standards are generally not changed due to the importance of a case. Indeed, one would hope that it is even more essential for such important cases to be free of any ethical controversy.

Virelli and others have also maintained that Jackson could still rule in the sister case involving the University of North Carolina. This is admittedly a closer question, as I discussed in the column. However, the questions in the cases are identical and the Court has consolidated the cases. A ruling on the same question in the North Carolina case will have a direct impact on Harvard.

The Court itself has consolidated both oral argument and filings in the two cases:

 

Jan 24 2022 Petition GRANTED. The petition for a writ of certiorari in No. 21-707 is granted. The cases are consolidated, and a total of one hour is allotted for oral argument. VIDED.
Jan 24 2022 Because the Court has consolidated these cases for briefing and oral argument, future filings and activity in the cases will now be reflected on the docket of No. 20-1199. Subsequent filings in these cases must therefore be submitted through the electronic filing system in No. 20-1199. Each document submitted in connection with one or more of these cases must include on its cover the case number and caption for each case in which the filing is intended to be submitted. Where a filing is submitted in fewer than all of the cases, the docket entry will reflect the case number(s) in which the filing is submitted; a document filed in all of the consolidated cases will be noted as “VIDED.”

The question now is whether Judge Jackson will address this ethical issue before or during the confirmation hearing. The White House may prefer her to say that she will address any conflicts as a member of the Court. However, some senators are likely to ask about her understanding of the standard and obligation of recusal.

I have great respect for Judge Jackson and her ethics have never been questioned. I expect that she will recuse herself. I still see no ethical alternative.

 

84 thoughts on “Why Judge Jackson Needs to Recuse Herself in the Harvard Case: A Response to Noah Feldman et al.”

  1. Of course “having held” a position on the Board of Overseers is not at all like being currently on the board of Exxon, as the latter represents an ongoing state of affairs and the former sweeps into its ambit relationships which occurred in the past.

  2. Jackson will not recuse herself under one very powerful legal doctrine: Democrats can get away with anything. It falls under the Shameless penumbra of Democratic Legal Jurisprudence. Support the filibuster for decades (even up to and including this term) and now call it Jim Crow! Filibuster and vote against Black women jurists advancing…fine for Democrats. Scream about elections being tainted, fraudulent and needing to be resisted…only when a Republican wins.

    When you have the media and big tech on your side you can do anything and not have to answer for it. You can take your son aboard Air Force 2 to make deals in China…fine. You can get obvious kickbacks from corrupt deals…fine. You can take a private jet to a “Climate Conference” and not be embarrassed. Heck, you can even leave an unconscious woman in the backseat of your sunken car, swim to safety and hide out for 8 hours and still be considered the “Lion of the Senate”.

    They talk about “white privilege” and “male privilege” but the only privilege I see is liberal or Democrat privilege. Imagine a Joy Reid of the right? Imagine an Al Sharpton of the right? Imagine a Jeffrey Toobin on the right? Imagine a Joe Biden on the right. Every time, every single time a Democrat gets in trouble they turn to the far left for safe harbor. Get caught in blackface as the governor of VA…go far left. Get caught with homophobic emails and texts, become an unhinged far lefty on MSNBC.

    The left’s privilege in a super power!

  3. Anonymous says:

    “It sounds like CNN and the network news shows are afraid of Turley because he would make mincemeat out of their talking heads.”

    Nothing would satisfy me more than for Turley to emerge from his *safe zone* within the Fox News bubble to engage in a live debate with a legal scholar on the Left , e.g., Neal Katyal. Eventually, Turley will have to face those who have questioned his bona fides in partnering with the likes of Carlson, Hannity, Ingraham and- worst of all- Mark Levin. It’s Turley who is afraid to be held accountable for his abject hypocrisy which explains why he is not willing to appear publicly unless it is on Fox News where he will not be challenged.

    Nor will he take questions from us….

    1. “Nothing would satisfy me more than for Turley to emerge from his *safe zone*”

      Your vision is cloudy, and you don’t see what is there. CNN needs to emerge from its safety zone and face those on the other side of the aisle. They won’t. They are unable and afraid. They are not that much different from you.

      1. CNN has faced those on the other side many times over the years — For example Guiiani and K Conway on Cuomo and Jeffery Lord, K McEnany, and Santorum on Anderson.

        1. CNN is very limited in the time it gives to competent conservatives. Fox is far more open to the diversity of ideas.

          1. MSM today: McCall on CNN, Haley on NBC Rubio and Christie on ABC, and Barr with Holt tonight.

      2. Hopefully….HOPEFULLY….Turley and his entire family die screaming in a house fire.
        That would be hilarious!!

  4. 1. She dose not get Confirmed [The Harvard issue is Moot]
    2. Confirmed and does not Recuse – Writes Opinion [and will no doubt be controversial]
    3. Confirmed and Recuses Herself – She kibitz and her thoughts are incorporated by other Justices within the in Seriatim Opinion.

    I don’t see this Matter as a ‘Pivotal Point’ upon Her Confirmation. (yes it can be made – Controversial, but the Media won’t touch it)
    She will undoubtedly be asked a number of Questions on contemporary legal issues.
    I’d be more concerned about ‘who is prepping her’ for the Confirmation hearing(s),
    [She may know the answers before they are asked. A staged Confirmation Hearing]

    I would think that She would recuse Herself, to dispel any issue of conflict.
    Also (if confirmed) she will be in the process of ‘ramping-up’ into the position of Justice.
    It’s a bit much of running a Law Firm and getting things working smoothly with the People around her, this will take time.
    She is bright enough to recuse herself in the face of the Load she is thrust into.

  5. Turley notes:

    “Rule 2.11 on disqualification says that a judge should recuse when “the judge’s impartiality might reasonably be questioned.”

    By the same token, I have always questioned Turley’s impartiality when he points his boney finger at Fox’s media competitors for engaging in “advocacy journalism” which he decries. He is handsomely paid by Fox as a legal analyst. Not even the lying Trumpists can state with a straight face that Turley’s impartiality might NOT be reasonably questioned!

    Turley should reveal his allegiance to Fox News *whenever* he complains about Fox’s media competitors at MSNBC, CNN, etc., for his bias in favor of Fox is unmistakable and undeniable. Better yet, he should recuse himself from doing so since his finger-pointing is self-defeating, for he NEVER criticizes Fox for worse. Prove me wrong.

    Turley’s hypocrisy is on display for all to see, and his once sterling reputation has taken a grave hit among those who used to sing his praises including myself.

    1. It sounds like CNN and the network news shows are afraid of Turley because he would make mincemeat out of their talking heads. We have frequently seen how the left will not debate or interview those that provide better facts and better opinions.

      It is pure fear that drives the MSM and seems to drive you as well.

  6. Saying because she’s diesn’t have definitive say in admissions policy decisions is disengenious. Her Board makes the very policy at issue and enforces it. Further, whether she developed the policy or not as Virelli thinks important isn’t germane. What’s germane is that she enforced it. Would we let Jeff Bezos serve on Walmart’s Board even though he doesn’t handle day to day competition against them?
    She needs to recuse herself. If not, she’s the political shill in flowing black we thought she was.

  7. Once again, Turley has to admit that he has no facts indicating whether Judge Jackson’s committee has anything to do with admissions policies. Harvard has TWO governing boards and 50 committees, so admissions policies may not be something that Judge Jackson’s committee has any involvement with. But, as with my previous criticism of Turley, he writes these pieces using his credentials to provide credibility to the endless drumbeat of criticism of Judge Jackson and everything Joe Biden does as President by his employer. Just look at the comments by the disciples: they all believe: 1. that there is an actual conflict, even without specific proof; and 2. Judge Jackson will do something unethical if she sits in judgment of the Harvard admissions policy case. Turley: your paid advocacy is getting tiresome, especially when you go after your critics.

    1. So just how does one prove conflict and to whom? Simple past involvement with Harvard is toxic. The appearance of conflict is sufficient for recusal.

      1. Several of the Justices have “past involvement with Harvard.” Should they all recuse?

        1. Several of the “Justices” must be impeached and convicted for allowing the unconstitutional communistic American welfare state. Are you ——- kidding me? Read the U.S. Constitution and Bill of Rights.

          Article 1, Section 8, provides Congress the power to tax ONLY for “…general Welfare…,” omitting and, thereby, excluding any power to tax for individual welfare, specific welfare, redistribution of wealth or charity. The same article provides Congress the power to regulate ONLY money, the “flow” of commerce, and land and naval Forces. Additionally, the 5th Amendment right to private property is not qualified by the Constitution and is, therefore, absolute, allowing Congress no power to claim or exercise dominion over private property, the sole exception being the power to “take” private property for public use.

          The Deep Deep State cannot provide favor to differentiated “people,” redistribute the wealth of individual Americans, regulate anything other than money, commerce and land and naval Forces, or “claim and exercise dominion” over private property.

          The communist (liberal, progressive, socialist, democrat, RINO) Deep Deep State really is unconstitutional.

          Americans really are free.

          Really.

  8. “[We gave you] a [restricted-vote] republic, if you can keep it.”

    – Ben Franklin
    ___________

    “At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.”

    – Abraham “Crazy Abe” Lincoln
    _________________________

    “I’ll have those ——- voting democrat for the next 200 years.”

    – Lyndon Baines Johnson
    ____________________

    “We are five days away from fundamentally transforming the United States of America.”

    – Barack Obama

  9. I agree with JT’s decision here to elaborate and explain his views and he should consider doing that in other areas as well. One thing that struck me reading this blog is that the main issue he identified before the court seems so general (whether to overrule a precedent) and not so Harvard related is there really a conflict that would require a recusal?

  10. “Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions.”

    Since race (and sex) were the qualifying factors for Judge Jackson’s “admission” to the Supreme Court nomination, in my opinion it would be asking too much for her to be objective about the issue. Could a convicted person freed by DNA be expected to be objective about a DNA evidence admissibility issue? I think even Solomon would have a hard time with that one. Like every other significant Biden decision so far, using race and sex as qualifying criteria was dumb… good pandering but dumb.

    1. Since Federalist Society approval was a qualifying factor for ““admission” to the Supreme Court nomination” for several Justices on the Court, and multiple Justices are current or former members of the Federalist Society, can they be objective in cases where other Federalist Society members participate as either litigants or amici?

        1. Take honestlawyermostly’s comment and my response as a pair. Either they’re both tongue-in-cheek or neither are.

  11. Advice from a group of old guys:
    1. Don’t buy a condo. You can’t control.
    2. Invest in a broad group stock fund like Vanguard or Berkshire B.
    3. Reflect on life. Prior days and what’s going on home and abroad now.
    4. Keep a car until it’s quite old. Don’t spend money on a new one. Buy a Dodge Astro 4 door sedan. Mines 19 years old.
    5. Be frugal about going out to dinner.
    6. Quit booze.
    7. Explore the internet.
    8. Work your yard. Flowers, veggies, bushes, trim trees, cut grass. Get a self propelled battery driven stand up mower.
    9. Pay someone to paint your house. St least don’t climb the ladder. Don’t go up on the roof.
    10. Shop frugally. Look for deals online. Use Amazon Prime. Walmart is good and will deliver.

    1. 11. Shop consciously. If it says Product of China or Made in China, do not buy it. If you pulled all the China products from Walmart shelves, there would be no more Walmart.

    2. liberty2cnd

      Live fast, die young, leave a good looking corpse.
      That was Micky Mantles code, but checking into Betty Ford Clinic, he said he would have taken better care of himself if he knew he was going to live so long.

  12. Jonathan: Looks like you have given up your crusade to keep Judge Jackson off the SC. This post is an admission you lost that fight. Now you switch to the argument that a Justice Jackson should recuse herself in the racial discrimination case against Harvard now on the Court’s calendar. Of course, recusal is left to the discretion of each Justice. Refusal to recuse is not reviewable. Just ask Clarence Thomas. If there is anyone with a potential conflict of interest in Harvard case it is Thomas. His wife, Ginni Thomas, is a well known conservative activist. She supported Trump’s “Stop the Steal” insurrection. In an open letter she called on Kevin McCarthy to expel Liz Cheney and Adam Kinzinger from the GOP. Her political activities are unprecedented in SC history. She is on the advisory board of the National Association of Scholars that filed an amicus brief in support of lawsuit against Harvard. In federal courts of appeal amicus briefs brought by anybody with a connection to a judge hearing a case are routinely thrown out. This rule doesn’t apply to the SC but even the appearance of a conflict should cause the Court to throw out the NAS brief. Clarence Thomas’s close connection to Ginni’s political activities and her open support of the plaintiffs in the Harvard case makes his recusal in the Harvard case even more compelling. If a Justice Jackson has, in your words, “no ethical alternative” to recusal in the Harvard case shouldn’t the same standard apply to Clarence Thomas who has more blatant conflicts in the case? Why the double standard? Will Thomas recuse himself? It’s unlikely. So why should Justice Jackson?

    1. So, your position is that the actions of someone’s spouse are the same as the action of the person themselves. THAT holds all sorts of interesting – and awful – possibilities. Simply – you’ve got to be kidding.

      1. Skipkirkwood,

        A spouse has greater influence on the justice than anyone else. If Ginny Thomas is that involved with such political activities it leaves a strong sense that she can influence or already influences her husband. Thomas does have a similar reason to recuse based on Turley’s rationale.

        Jackson is but one member of the board it is not known if she was part of any admissions decision. Just as it is not known if Ginny Thomas hasn’t discussed cases with her husband. Dennis has a very good point.

        1. “A spouse has greater influence on the justice than anyone else.”

          We now know who wears the pants and has the brains in your family.

          1. Anonymous (chihuahua S. Meyer) proceeds to dole out insults as expected. It’s all she knows.

            1. Stop complainingSvelaz. What you did above was to admit you don’t have a mind of your own that can filter ideas even from a spouse. In your case, you are lucky that your spouse has taken over. Otherwise, you would fail. Why not put your spouse on the blog. Then we might be able to hear some intelligent dialogue from you.

        2. Probably Justice Thomas and his wife share the same Constitutional and political views which is the reason that they married in the first place. How then would it be necessary that Justice Thomas recuse himself from any decision in which he and his wife share Constitutional or political views. There is a difference if they have any financial interest in the outcome of a decision. If that is the case, then the Executive branch [Biden and his son, sister and brother, as an example] and the Legislative branch [Pelosi and her husband and son, as an example] should recuse themselves from any decision affecting their financial holdings. It is true that there may be scattered couples who are married and share nothing but a bed.

          1. The issue isn’t whether they share political views.

            The issue is that she works with organizations that are filing briefs with the court, arguing for specific outcomes in specific cases.

    2. Another false analogy. Besides, Judge Jackson has yet to appear before the Senate – and I’m very sure this issue will be addressed during her confirmation hearings (political theater though they will be).

    3. Recusal is based on the nominees status to the issue not his wife, or other family members personal positions. In Justice Jackson’s case, it is she who has the relationship to Harvard and its admissions policies , not her spouse. And Justice Thomas is on the court. His wife’s opinions on any issue are irrelevant, especially now. Your standard will require looking to the opinions of the family members of a Justice forever and if they ever expressed an opinion on any issue even tangentially related to a case before the Justice, would disqualify him. How stupid would that be? And how impractical. BTW, the Justice alone does not get to choose if they are recused or not. There are legal procedures by those before the court to request recusal. Perhaps if you were ever an attorney or Judge you might know that.

      1. Recusal applies to all judges and justices, not just nominees.

        And no one is talking about Ginni Thomas’s personal opinions, but about the fact that she works with organizations filing briefs filed with the court.

                1. She is in control, and she is the one under consideration for the position.

                  You can’t understand the difference. We know why. There is no need to convince you of what makes sense because you seldom make sense on this type of issue.

    4. That she is a political activist is irrelevant. That has never been a standard for recusal. If she were a board member on a party to a case then he should recuse himself from that case or she should resign from the board, and I’m confident that one of those things would happen.

      And if Jackson had been on the board of some other university, that isn’t a party to the case in question, nobody would be calling for her to recuse herself.

      And no, being on the board of an entity that filed an amicus doesn’t count. Judge Reinhardt in California would only recuse himself from cases directly involving the Southern California ACLU, which his wife headed. He refused to do so when it had merely filed an amicus in a case. Nor did he do so when any other branch of the ACLU was involved. He certainly didn’t recuse from all civil-liberties related cases, which seems to be the equivalent what the Dem talking points are demanding of Thomas now!

  13. This problem only arises because the Supreme Court has become a pseudo-legislative body, and many of its problems stem from its pseudo-legislation.

    1. Yes. Act like politicians and expect to be treated like politicians. The Court has pooped in it’s own nest too many times. Easy to soil but hard to clean.

  14. As several have noted, the suggestion of recusal is an overt act of racism, misogyny, homophobia, and redlining.

    1. They are making them sound like good things, the way they recklessly toss these accusations around.

      They apparently never heard about the boy who cried wolf too many times.

      If the wolf really comes nobody will harken to the cry. It’s good for the wolf in the long run.

    2. No, it’s not. The only racism et al. evident in this situation is on Mr. Biden’s part. I can’t say I follow this with a microscope, but I haven’t seen anything suggesting Judge Jackson is not worthy of consideration.

      1. “I haven’t seen anything suggesting Judge Jackson is not worthy of consideration.”

        +++

        Perhaps the fact that her cases have frequently been overturned on appeal might qualify.

        She seems to have the judicial mind of a rabid dormouse.

        1. I doubt that you’ve compared the % of her decisions that were overturned with the % for other nominees. Of course, for Clarence Thomas, the % was zero, as he’d never even been a judge. But you like his politics, so that makes his lack of experience OK, right?

      2. “I haven’t seen anything suggesting Judge Jackson is not worthy of consideration.”

        – mistressadams
        _____________

        We can know that Biden and democrats are not doing the best for America; they are doing the worst for America.

        There is a pool of 250 million Americans juxtaposed against a pool of 20 million African women – a multiple of 12.5.

        It is impossible that the present administration is promoting the highest and best, the most qualified, candidate for the benefit of America.

        What is the innate goal of elected officials in a restricted-vote republic, if not the enhancement and prosperity of the nation, of America?

        The Constitution provides freedom to all undifferentiated “People”; it does not provide “favor” and it does not guarantee the failure or success of any individual.

        The affirmative action that Jackson is participating in is antithetical, deleterious and unconstitutional.

        Congratulations, she can be a proud, dependent, charity case in need of assistance and in need of a crutch in order to obtain faux, artificial success in life.

        1. George the Bigot rears his ugly head again and demonstrates that he fails at logical reasoning.

          1. ATS: “George the Bigot rears his ugly head again and demonstrates that he fails at logical reasoning.”

            +++

            Interesting example of your version of logical reasoning. I took the same course in kindergarten.

            Next year I was punched in the nose and decided it wasn’t as logical as I first thought. Where have you been coddled not to learn that lesson?

            1. If you only learned logic in kindergarten, that might explain why you haven’t noticed George’s errors in both fact and logic.

              1. And one might surmise that you, the singular witting oracle, in an attempt to prevail in this debate, and in the hearts and minds of its patrons, might have presented precisely those “errors” in both fact and logic.

                Alas, we are left wanting.

                1. As a start, George, you erroneously contrast “Americans” and “Africans,” and you pretend that the relative proportions in the general population are relevant, when they are not.

            1. George, do you understand that some insults constitute ad hominem, and other insults do not, and are you able to distinguish between these two sets?

  15. Why should she recuse herself? She will clearly only be there because Biden decided to pander to a certain segment, is only there to advance a progressive agenda, and is expected to rule in favor or every affirmative action or minority set aside case.

  16. Aaand, on recusal: ‘Professor Turley is disappointed by the Democratic’ party episode #999. What will it take for old school libs to wake up the rest of the way? Why do they think this thing, ‘Liberal ethics’, is something that just exists in the air like O2 rather than with or not with the people involved, and that people in their party need to just stop and breathe it again?

    She won’t recuse herself, and to question it will be racist and sexist. That’s why they picked her – those excuses are built in and visibly, instantly, ‘verifiable’.

    Modern Progressives are the same old racist Progressives. They will exploit and twist any concept in service of their ‘rightful’ power as elites. This is just yet another example.

    Oh, and: they actively dislike our Constitution. It is simply *not* even a consideration for them.

  17. The arguments against Justice Jackson recusing herself simply don’t pass a far older precedent called the smell test.
    As far as arguments that Justice Thomas should recuse himself from a whole host of judgements because of his wife’s activities, I would have to say that wives are free agents and not chattel of their husbands. Or as a particular character said in “David Copperfield”, when he was told that the law considered him to be legally responsible for for all of his wife’s actions, “then the law is an ass”. I would suggest that most most present day spouses would agree that the other spouse is a free agent, or we would suffer unmentioned consequences.

    1. That Ginni Thomas is a free agent is irrelevant to whether Justice Thomas should recuse. She is free to choose to legally intervene in cases before SCOTUS. He is free to recuse in light of her choices.

      1. Ginni Thomas: integral force and determative regarding, SCOTUS rulings

        Hunter (10% for the big guy) Biden, dozens of trips on Air Force II: Hunter who?

  18. The mere chance of being approved by the Senate means her background requires recusal in any current lower level court. The other choice is being banned to judge at the highest level her own actions at the previous level.

    Just to sum it up. Anything different would smack of socialist Judges changing the rules or charges. And that we have seen. It does not matter if the current known amount is small or large. It was a crime and the socialist judge became an accessory after the fact. Brown’s choice is much the same except she has to contend with eight other Justices. Or be accused of changing at one level what could not be changed at another.

  19. Still odds on that there is no recusal. And there will be nothing reported about the Judge’s ethical dilemma in the legacy media

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