Roberts, Conflicts, Conventions

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Should John Roberts have recused himself in Hamdan v. Rumsfeld? That's what law profs Stephen Gillers, David Luban and Steven Lubet argue in today's L.A. Times. Nut graf:

While the case was pending in his court, Roberts was interviewing with high White House officials — including Atty. Gen. Alberto R. Gonzales, Vice President Dick Cheney and Deputy Chief of Staff Karl Rove — for a seat on the Supreme Court. In the words of the federal law on judicial disqualification, this placed the judge in a situation where "his impartiality might reasonably be questioned."

Instead, Roberts cast a swing vote ruling that the Geneva Convention doesn't apply to accused Al Qaeda members.

Harvey Silverglate wrote a prescient criticism of the Supes' expansions of Executive authority in January 2005.