(WASHINGTON) — At her Senate confirmation hearing next week, Supreme Court nominee Ketanji Brown Jackson will face calls to recuse herself from one of the first major cases she would hear as a justice: a challenge to Harvard University’s use of race as a factor in undergraduate admissions.
Jackson, an alumna of Harvard College and Harvard Law School, currently sits on the university’s Board of Overseers that “provides counsel to the University’s leadership on priorities, plans, and strategic initiatives,” according to its website.
The justices this fall are slated to hear a challenge to the school’s admissions policy brought by a group of Asian American students that alleges they were illegally targeted and rejected at a disproportionately higher rate because of their race. The case could determine the fate of affirmative action policies nationwide.
“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,” George Washington University law professor Jonathan Turley wrote in a column this month. “For that reason, Jackson will be asked in her confirmation hearing to confirm whether she will recuse herself from the Harvard case.”
It could also provide an opening for Republicans to raise sensitive issues of race, opposition to affirmative action in general, and President Joe Biden’s pledge to prioritize race and gender in his high court pick.
“I expect one of the first questions at this hearing to be: You are highly qualified, but a lot of other highly qualified people weren’t considered for this job because of their race. Would you think that was lawful if it happened at a private employer?” said Sarah Isgur, a former Trump Justice Department lawyer and ABC News contributor.
Jackson’s six-year Harvard board term concludes on May 26, a school spokesman said. Supreme Court oral arguments in the school’s case would be heard several months later.
Federal law stipulates that federal judges must recuse themselves from cases whenever their “impartiality might reasonably be questioned” or when “the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”
Enforcement of the rules on the Supreme Court is by honor system, leaving it to each justice individually to decide when it’s appropriate to recuse from a case. Those decisions are rarely explained.
“Six years on the Board is a long time, and her impartiality in the case — that is, in favor of Harvard, given her ties to the Board — might be reasonably questioned,” said Gabe Roth, executive director of Fix the Court, a nonpartisan judicial watchdog group. “I think that balancing these factors, it’d be prudent for her to recuse, though it’s not as clear cut as some pundits have made it out to be.”
Board involvement in setting admissions policy, including potential consideration of race as a factor, and in guiding the school’s response to the lawsuit is not clear. A university spokesman declined to comment.
“As I understand it, the Board of Overseers is not a policymaking body and does not make admissions decisions or policies, nor are its members in a fiduciary relationship with the university,” said Stephen Gillers, an expert in legal ethics at NYU School of Law. “Recusal would not be necessary, even if Judge Jackson were still a board member when the case is heard.”
Judge Jackson, who is a member of the board’s executive committee, has not publicly addressed the apparent potential conflict or possible recusal from the Harvard case.
Former Democratic Sen. Doug Jones of Alabama, who is shepherding Jackson through the confirmation process, declined to say whether recusal has been discussed.
“That’s a question that she’ll answer once she gets at the confirmation hearings, rather than me trying to answer for her,” Jones told ABC.
White House spokesman Andrew Bates told ABC News “Judge Jackson would follow the highest ethical standards when it comes to recusals.”
As a U.S. District Court judge, Jackson removed herself from at least two cases involving Harvard University, according to her written responses to a Senate Judiciary Committee questionnaire this month.
In 2016, she recused herself from a case involving the Education Department’s sexual assault guidelines for colleges and universities because the Harvard Board of Overseers was “evaluating its own potential response to those guidelines.” In 2018, Jackson stepped aside in a case involving a Harvard research librarian who was suing the Environmental Protection Agency over a Freedom of Information Act request.
“For similar reasons – even if Jackson resigns from the Board – she may need to recuse from the [affirmative action] case because she ‘has personal knowledge of disputed evidentiary facts concerning the proceeding,’ as described in the federal statute governing judicial disqualification,” said Carrie Severino, president of the Judicial Crisis Network, a conservative legal advocacy group with influence among Republican senators.
Isgur said an apparent conflict of interest is already evident.
“She’s been on the Harvard Board of Overseers for five years — that’s from the start of this litigation through the discovery process. The likelihood that she hasn’t discussed the case while on that Board is very, very low,” Isgur observed.
Jackson would become the fifth graduate of Harvard Law School on the nation’s highest court if she’s confirmed, though legal analysts noted that simply being an alumnus of the school did not alone create an ethics issue.
“Her being a graduate won’t be a problem at all,” said Cardozo School of Law professor and ABC News legal analyst Kate Shaw. “If it were, there’d be several other recusals. But it might be prudent for her to resign from that board prior to joining the Supreme Court, which I think would resolve any conflict.”
The Harvard case and a related suit against the University of North Carolina will be argued together at the Supreme Court sometime in October or November. Many court watchers believe the conservative majority will move to roll back, or outright ban, the use of race in admissions.
The cases will be the first test on affirmative action for the six-justice conservative majority since the retirement of Justice Anthony Kennedy and death of Justice Ruth Bader Ginsburg, both of whom defended the policy.
Judge Jackson’s views are not clear, but an examination of her jurisprudence suggests she would likely be in tandem with the court’s liberal wing.
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