Ketanji Brown Jackson’s Harvard ties raise recusal questions in Supreme Court’s affirmative action case

“If she’s not going to recuse, she needs to tell us what her role has been” at Harvard, said Sen. John Cornyn (R-Tex.). “I expect that she’ll studiously avoid answering any questions. It seems to be the practice.”

Jackson, whose term on Harvard’s Board of Overseers expires this spring, has not said publicly what she would do. A White House spokesman, Andrew Bates, said this week that she “would follow the highest ethical standards when it comes to recusals.”

But whether Jackson should step aside is not so clear-cut. A review of the cases in which she chose to recuse during eight years as a District Court judge shows she was highly attuned to concerns about the appearance of partiality and at times more cautious than the rules required, according to ethics experts who note that Jackson appears to have gone out of her way to disqualify herself from handling several cases when it was not necessary.

Jackson’s confirmation hearings, scheduled to begin March 21, provide an opportunity, said law professor Susan Fortney, for the judge to “signal the type of justice she will be,” including on the issue of judicial ethics.

“Although some may maintain that her position as a member of the Board of Overseers does not trigger recusal if the board was not involved in decision-making related to the admissions program, a different perspective is that impartiality should be considered in the eye of the beholder and that her impartiality might be reasonably questioned because of her governing board connection,” Fortney, who leads the Program for the Advancement of Legal Ethics at Texas A&M University law school, wrote in an email.

If Jackson did recuse, Fortney said, she would send a message that “she intends to hold herself to high ethical standards and promote confidence in the administration of justice. This may inspire other justices to examine their own conflicts and impartiality.”

While Jackson erred on the side of recusal as a trial court judge, there are additional considerations for Supreme Court justices. When a District Court judge steps aside because of potential conflicts, there are other judges to take their place. But when one of nine justices declines to sit, the Supreme Court is left shorthanded, raising the possibility of a deadlock.

Justice Clarence Thomas has come under particular scrutiny in recent years for participating in cases that intersect with the political work of his wife, Ginni Thomas, a prominent conservative activist. But notably, he disqualified himself from the court’s review in 1996 of the Virginia Military Institute’s past admissions policy of excluding women because his son was a VMI student at the time.

Jackson’s affiliation with Harvard is more current. She has served as a member of the oversight board, which provides “counsel to the University’s leadership on priorities, plans, and strategic initiatives,” since 2016. Her term ends May 26; the court will hear the affirmative action challenges to policies at Harvard and the University of North Carolina in the term that begins in October.

“Six years on the Board is a long time, so, to quote the federal recusal law, her ‘impartiality’ in the case — that is, in favor of Harvard, given her ties to the Board — ‘might reasonably be questioned’ here, meaning disqualification is required,” according to Gabe Roth, executive director of Fix the Court, a nonpartisan group that advocates for reforms.

On the other hand, he said, justices often “ignore the recusal law in favor of what they call a ‘duty to sit’ — that in close cases, the need to keep the court at full strength with nine justices outweighs any perceived bias.”

“Balancing these factors, I believe it would be prudent for her to recuse,” Roth concluded.

Jackson graduated from Harvard Law School and Harvard College, where she met her husband and has regularly returned to campus to teach a law school workshop, to serve on alumni panels and as a speaker to student organizations. She was an elected director of the alumni association for three years; a longtime member of the Harvard Club of D.C., through which she interviewed college applicants; and is a member of the Harvard Black Alumni Society. Her youngest daughter will be a freshman at Harvard in the fall.

The judge, who now sits on the U.S. Court of Appeals for the D.C. Circuit, is on a first-name basis with university president Lawrence S. Bacow, whom she interviewed last October as part of an alumni event. When the Supreme Court agreed to review Harvard’s race-conscious admissions policies in January, he issued a statement saying acceptance of the case “puts at risk 40 years of legal precedent granting colleges and universities the freedom and flexibility to create diverse campus communities.”

Sen. Josh Hawley (R-Mo.), said Jackson’s involvement with Harvard appears “pretty deep and significant.”

“I do think the recusal question is a very fair question,” he said. “I imagine it will come up and I’d like to hear the answer myself.”

Sen. Thom Tillis (R-N.C.), citing the “unique circumstances” surrounding her affiliation with Harvard, said he plans to ask Jackson whether she’d step aside unless someone more senior than him on the committee does so first.

“That’s even more than just being out there publicly in a position,” he said.

A key question in assessing whether Jackson should participate in the case is whether she played any role in the formation of the admissions policy being challenged, according to New York University law professor Stephen Gillers.

The board Jackson sits on was named in the original lawsuit in 2014 but dismissed as a party the next year, before Jackson was elected. It is separate from the smaller Harvard Corporation board, which has fiduciary responsibility.

“In theory, she could be so associated with the well-being of the school through her many works for the school and her relationships with the governance of the school that we would say her impartiality may reasonably be questioned,” Gillers said. But, he added, participating in school-sponsored events and panels as many judges and justices do, “doesn’t tip the balance for me.

“There has to be such a degree of identification with the well-being of the institution that a reasonable person would question the judge’s impartiality in a case in which the university is a party.”

A Harvard spokesman declined to comment.

Among the more than 2,000 pages Jackson submitted to the Senate Judiciary Committee in advance of her confirmation hearings is a list of the dozen cases over eight years in which she took the initiative to recuse. Of those, Gillers noted several in which he said recusal was not required.

In 2014, she disqualified herself from a case filed against George Washington University because she was an adjunct professor at the law school. In two civil cases in 2015, she recused because her brother-in-law was a partner at a law firm that represented defendants in the cases involving potential money damages. Jackson also declined to preside over a lawsuit filed against the insurance plan provided to employees of MedStar Georgetown University Hospital, where her husband is a surgeon.

In a separate pair of cases, she recused because of her role on the Harvard board even though the university itself was not a party in the lawsuits. She declined in 2016 to get involved in a challenge to the Department of Education’s sexual assault guidelines for colleges and universities because the board she was serving on “was evaluating its own potential response to those guidelines.” Two years later, she removed herself from resolving a lawsuit filed by a Harvard research librarian against the Environmental Protection Agency after the government failed to respond to a public records request.

In both instances, Jackson wrote in her Senate questionnaire, “I determined that my impartiality might reasonably be questioned and that this issue was incurable.”

Gillers said Jackson’s past practice underscores that “she was especially sensitive to the perception of partiality.” Even so, he said there are other considerations for a Supreme Court justice, who is just one of nine.

“I think it’s perfectly legitimate to say, ‘If it’s close enough I’ll recuse as a lower court judge’ and then on the same facts on the Supreme Court to say, ‘The harm to the court is too great to do the same.’ ”

In the case before the Supreme Court, it is unclear whether Jackson’s participation would be a deciding factor in the outcome. The slim majority that in 2016 upheld the limited use of race in school admissions has been replaced by a more conservative bloc of six, including three nominees of President Donald Trump. The Trump administration supported those challenging Harvard’s policies as unconstitutional. The Biden administration urged the court not to accept the case.

Jackson, who would make history as the first Black woman on the court, has faced questions before about her views on affirmative action. As a candidate to join the Harvard board in 2016, she declined to opine on the school’s admissions policy in a campaign survey, citing her role as a federal judge who might someday have to rule on the controversial issue.

In response, Jackson said she would adhere to court precedent and wrote, “I have no particular insight into the future need for, or ramifications of, the continued use of race in admissions.”

Robert Barnes contributed to this report.

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