Patterico's Pontifications

3/8/2022

Constitutional Vanguard: Should Ketanji Brown Jackson Recuse Herself from the Harvard Affirmative Action Case?

Filed under: General — Patterico @ 12:35 pm



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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4 Responses to “Constitutional Vanguard: Should Ketanji Brown Jackson Recuse Herself from the Harvard Affirmative Action Case?”

  1. 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.
    …….
    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.

    Rip Murdock (d2a2a8)

  2. A criticism (not based on ideology) of way Ketanji handled a case

    https://nypost.com/2022/03/03/verdict-on-ketanji-supreme-ly-heartless/

    …It is now eight years since Malaysia Airlines Flight MH370 crashed into the sea, killing all 239 people on board. Among them was one American man, Philip Wood, a 50-year-old IBM executive from Texas.

    In the traumatic months after the crash, Wood’s family sought to gain justice for their family in the courts. They imagined the American court system would help them. They were wrong.

    They first brought their case against Malaysia Airlines and Boeing in the state court of Illinois. But as they began to go through the slow grind of the US justice system, they found themselves completely abandoned. The case ended up being bundled with a set of other cases in something called an MDL (multi-district litigation) that ended up going to DC. And it was there that Judge Ketanji Jackson was assigned the case.

    The lawyers thought she would be sympathetic.

    Far from it. As the family were to discover, Jackson was on the side of big business.

    From the get-go, Jackson treated the case with indifference and a sloppy lack of attention, Wood claims. Lawyers said they expected judgment to take a few months. More than 13 months went by before a judgment came. It was filled with flaws. First, according to the family, it was not just terse, but largely copy-and-pasted from the brief Jackson had been given. She dismissed the family’s case, saying it was better tried in Malaysia than America. Perhaps knowing how unpopular it could be, she released her judgment just before Thanksgiving, when the story would be buried.

    “The United States’ strong public interest in securing a legal remedy for its citizens,” Jackson wrote, “is nonetheless overshadowed by Malaysia’s overwhelming interest in the resolution of claims concerning this national disaster.”

    Now they were suing maybe on a wrong theory, but they didn’t get discovery.

    From her dismissive judgment, the family had no doubt where the judge’s sympathies lay. Nor that she was playing a careful political game of her own as she looked for a seat on the Supreme Court.

    “She knew exactly what she was doing,” said Nick Wood, now 32. “She waited until the 2018 election to release a very pro-business ruling, which granted the defense’s request for a dismissal of our case.”

    According to Woods, she addressed none of the underlying issues, and simply barred an American family from having the right to pursue justice through the American courts for the loss of an American citizen. Having spent a couple hundred thousand dollars trying to seek justice (money they would not have had if their father had not taken out a life insurance policy), Jackson’s ruling meant they had to resort to the Malaysian courts if they ever wanted to get a hearing. A fine prospect.

    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 her

    Contemplating Jackson heading to the highest court in the land, Nick Wood said this week, “Everything that she stands for and exists for, I believe, is a lie. She has the right skin color, according to President Biden’s requirements. She has the right-sounding name. She went to the right schools.”

    She is the perfect example of the nepotistic “swamp,” according to Wood. “I’ll never be able to find out what happened to my father, since she didn’t grant us US-style discovery. An American judge shouldn’t be able to force an American family suing an American company to a foreign court by simply saying, ‘Well, that’s a “more convenient” forum.’ Convenient for whom — for Boeing? That’s never been done before. And it sets a horrible precedent for every citizen in the United States, for anyone seeking justice for a loved one who was killed.”

    “She’s either lazy, calculating, or both,” Wood said. “A political ­opportunist.”

    Sammy Finkelman (02a146)

  3. 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)

  4. 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)


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