Letters to Senator Arlen Specter, Chairman, U.S. Senate Judiciary Committee

In Slate magazine, August 17, 2005, Professors Stephen Gillers, David Luban, and Steven Lubet published an
article entitled “Improper Advances: Talking Dream Jobs With the Judge Out of Court.” The article argued that Judge John Roberts violated a federal statute by failing to recuse himself from Hamdan v. Rumsfeld when he began interviewing for a Supreme Court seat while the case was pending. Judge Roberts met with Attorney-General Alberto Gonzales on April 1, six days before the oral argument in Hamdan. He met twice in May with top White House officials, and had several subsequent interviews before Hamdan was decided on July 15. At the time of the first interviews, Justice Sandra Day O’Connor had not yet announced her retirement, but Chief Justice Rehnquist’s illness made it possible that a seat would open on the Court. The purpose of the statute, which requires recusal when a judge’s “impartiality might reasonably be questioned,” is the important one of maintaining public confidence in the courts–and prior cases have held that judges must recuse when they interview with litigants or lawyers in their cases for future jobs. Gillers, Luban, and Lubet acknowledge that “Roberts did not have to sit out every case involving the government, no matter how routine, while he was being interviewed for the Supreme Court position.” But Hamdan was “the polar opposite of routine”: President Bush was a defendant, and the case—concerning the legality of military commissions and the applicability of the Geneva Conventions to suspected Al Qaeda members— was extremely important to the Administration. Judge Roberts cast a decisive vote on a crucial Geneva Conventions issue. Gillers, Luban, and Lubet called on him to recuse himself retroactively from Hamdan....