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:

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.