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.

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  1. Actually, I don't believe the the Geneva Convention(s) do apply to AL Queda members. The GC concerns treatment of uniformed members of recognized combatant nations. When these documents were written it was (and in many places is) the norm for non-uniformed fighter to be considered spies or "illegal combatants" and executed.

    That we do not do that is a courtesy, and an example of our civilized nature, nothing more.

  2. the authors make a good case for requiring recusal in cases in which the fed govt is a party...then make a good case for not requiring recusal...then make the arbitrary declaration that hamdan is a different kind of case that should not be exempt from recusal. net result: the authors have proved that this is a complete non-issue.

  3. Seems silly. Follow the logic to its end, and every judge with a reasonable chance of promotion would have to recuse himself in any case where the government is a party. Unworkable.

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