Constitutional Vanguard: Should Ketanji Brown Jackson Recuse Herself from the Harvard Affirmative Action Case?
Barring a shocking development, Ketanji Brown Jackson is going to be a Supreme Court justice. She has also been a member of the Board of Overseers at Harvard. Will she have to recuse herself from the upcoming case in which Asian plaintiffs challenge the university’s admissions practices as racially discriminatory? And do those plaintiffs have a good case? These are the topics discussed in my latest newsletter.
In the post, I try to dive beyond the Big Media practice of consulting experts with differing opinions, which sheds little light on the relevant law or historical practice. I also offer my own opinion on the issue.
Excerpt, from the portion discussing the merits of the case:
Asians are penalized, especially in the subjective personal ratings, where a racial analysis shows that “the actual ratings reveal a clear racial hierarchy—with African Americans receiving the highest personal ratings, followed by Hispanics, then whites, then Asian Americans coming in last.”
None of this is shocking, although it should be. Every parent who has ever sent a child to college knows in their bones that universities discriminate on the basis of race.
Add to these facts the longstanding hostility of Chief Justice Roberts to racial preferences. Conservatives have come to think of him as the Sultan of Squish, but he is still the same man who famously wrote these words: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” I have no basis to believe he has changed his mind.
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According to this article:
Indiana University law professor Charles G. Geyh, an expert on judicial conduct and ethics, said a recusal should hinge on whether she was involved in implementing race-conscious admissions policies during her time in University governance.
“In her capacity as a member of the Harvard Board of Overseers, if she was responsible for creating, implementing, or enforcing the policy that she is now being asked to review, I would probably argue that she should step aside in that situation,” Geyh said.
The Board of Overseers, one of two governing boards at Harvard, does not provide direct input on the school’s admissions policies. There was no mention of the Board in a 130-page opinion issued by a federal judge in 2019 that detailed Harvard College’s admissions process. The 13-member Harvard Corporation, the University’s highest governing body, plays a larger role in overseeing the school’s operations.
Harvard Law School professor Noah R. Feldman ’92 said “there would be a strong argument that she would not need to recuse” if confirmed to the bench.
“On the Board of Overseers, neither she nor the other overseers would have had definitive say over the admissions process at the University,” he said.
Paul Bender ’54, an Arizona State University law professor, said Jackson’s time in Harvard governance could be reason enough for her to recuse herself from the case if she is nominated to the bench.
“I would imagine this Board of Overseers has some overseeing responsibility of the College and that would be enough for me to think that she should recuse herself,” he said.
However, even if Jackson recused herself from the Harvard suit, Feldman said there is a distinct possibility she could retain her vote for the UNC suit — which he called constitutionally “more important” because UNC, as a public university, is a state actor.
Jackson did not respond to requests for comment.
At least one other sitting justice may also face calls to recuse themselves from the (Students for Fair Admissions) case: Justice Clarence Thomas’ wife sits on the board of advisors of a conservative advocacy group that filed an amicus brief backing SFFA. Experts also noted that Justice Elena Kagan served as dean of Harvard Law School from 2003 to 2009 — but the SFFA suit specifically targets Harvard College’s admissions process.Rip Murdock (d2a2a8) — 3/8/2022 @ 1:21 pm
I’m certain she will be asked to make some commitment at her confirmation hearing, and she will respond with a polite comment about not discussing current cases.
A criticism (not based on ideology) of way Ketanji handled a case
The lawyers thought she would be sympathetic.
Now they were suing maybe on a wrong theory, but they didn’t get discovery.
They think this might be a precedent. She took her time and then didn’t do her own research,
The family that sued doesn’t like herSammy Finkelman (02a146) — 3/8/2022 @ 1:45 pm
Good article, Patterico.
And I didn’t know that particular detail about Marbury v. Madison. They really are royal vestiges in the way they continue to carry out the will of the President who appointed them while indulging in the conceit that they are an independent branch of government.nk (1d9030) — 3/8/2022 @ 5:11 pm
African-americans usually can appeal to a higher court in instances such as the dread scot decision and the rodney king decision. The highest court for black americans is not the supreme court ;but the street. How many black women have their been on the supreme court besides none.asset (daed4a) — 3/8/2022 @ 9:24 pm