Imagine that you're a party to a lawsuit. Now imagine that, once the case is over and you've lost, you find out that the judge who ruled against you was interviewing for a job with your opponent at the same time he was presiding over your case.
Would you feel, just maybe, that the judge had a conflict of interest? And how would you feel knowing that the judge got the job he was seeking -- and that the job was a lifetime appointment as an associate justice on the U.S. Supreme Court?
Those are some of the questions raised by Jim VandeHei's report in this morning's Washington Post. On July 15, John Roberts joined two of his colleagues on the U.S. Court of Appeals for the District of Columbia Circuit in holding that the Bush administration could use military tribunals to try detainees it is holding at Guantánamo Bay. What only Roberts and the White House knew the day the decision came down: At the very moment Roberts was considering the administration's appeal, he was also interviewing for a job on the Supreme Court.
Roberts and his colleagues heard the case of Hamdan v. Rumsfeld on April 7. Pursuant to the usual practice in the D.C. Circuit, Roberts would have known he was assigned to the case weeks if not months earlier. Yet on April 1 -- with the Hamdan briefs undoubtedly in his chambers -- Roberts met with Attorney General Alberto Gonzales about a possible Supreme Court nomination. In May, with a decision in the Hamdan case still pending, Roberts went to the White House to interview with Dick Cheney, Andrew Card and Karl Rove, the Post says. And on July 15 -- the same day the Hamdan decision was released -- Roberts interviewed with the president himself.
Federal law states that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Might Roberts' impartiality be "reasonably questioned" here? It's hard to see how it couldn't be. A White House official tells the Post that it would be unwise and unworkable to prohibit any judge who wanted a promotion from hearing cases involving the federal government; such cases are so common that the federal courts would just about come to a standstill. But there's a significant difference in degree here. While the federal courts are full of cases involving the federal government -- low-level drug prosecutions, tax cases, disputes over the decisions of administrative agencies on everything from telephone charges to workplace rules -- most of those cases aren't of particularly keen interest to the president and his senior aides. The Hamdan case was. As the Post says, the question of the propriety of military tribunals sits "at the heart of Bush's anti-terrorism strategy." Would the president have been less enthusiastic about nominating Roberts if Roberts had ruled against the administration in Hamdan? More important, might one -- say, a detainee at Guantánamo -- reasonably think that Roberts was thinking he would hurt his Supreme Court prospects if he ruled against the president in Hamdan?
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