Working Paper No. 06-42:
The Propriety of a Judge's Failure to Recuse When Being Considered for Another Position
Date Posted: 2006
Some commentators have argued that Judge John Roberts, recently confirmed as Chief Justice of the United States Supreme Court, violated a federal statute because of his failure to recuse himself in the case of Hamdan v. Rumsfeld, which a panel of the D.C. Circuit including Roberts recently decided. Several Senators raised the issue of Judge Roberts' failure to recuse himself during the course of his confirmation hearings, but the Judge did not comment on it because the case was still pending.
Any proposed "jobs recusal" rule, which would require a judge to recuse himself in such circumstances, imposes costs that greatly exceed any perceived benefits. It would empower members of the Administration to manipulate who sits on panels simply by considering one or more judges for other positions, and would be contrary to long historical practice, because judges often consider other positions in Government. A long line of historical precedent shows that it is common for judges to accept or consider appointment for other judicial offices or for other positions in the Executive Branch. The few cases on the issue, like Laxalt v. McClatchy, 602 F. Supp. 214 (D. Nev. 1985), and Mistretta v. United States, 488 U.S. 361, 409-10 (1989) come to the same conclusion: judges who do not recuse themselves from cases involving the federal government do not violate 28 U.S.C. — 455(a) even though they are considered for elevation to a higher judgeship or later accept such an appointment.
A new Jobs Recusal Rule would also call into question a long line of historical precedents. Throughout our history, the President has elevated lower court judges to a higher bench, or elevated Associate Justices to Chief Justice; appointed justices to other posts, either permanently, or for a limited time; and selected lower court judges to fill other positions in the Executive Branch. Judge Roberts, like his predecessors before him, followed the historical and legal precedent when he did not recuse himself from all cases involving the federal government simply because the Administration considered him for a Supreme Court appointment.