JUST FOUR DAYS before the Bush administration named John G. Roberts Jr. to fill retiring Justice Sandra Day O'Connor's seat on the Supreme Court, the District of Columbia federal appeals court decided a case called Hamdan vs. Rumsfeld. In a crucial victory for the administration, the court upheld President Bush's creation of special military tribunals for trials of alleged terrorists and denied them the protection of the Geneva Convention. Roberts was one of the judges who decided that case, but he should have recused himself.
While the case was pending in his court, Roberts was interviewing with high White House officials Â? including Atty. Gen. Alberto R. Gonzales, Vice President Dick Cheney and Deputy Chief of Staff Karl Rove Â? 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."
The authors of this piece--NYU's Stephen Gillers, Northwestern's Steven Lubet and Georgetown's David Luban--previously raised this issue in August, after Roberts was nominated to replace retiring Associate Justice Sandra Day O'Connor. Now that Roberts stands to become Chief Justice, in which capacity he will be in charge of the administration of the federal judicial system, the issue is of even greater significance. Let's see whether anyone on the Senate Judiciary Committee poses this important question, and whether, if asked, Roberts gives a straightforward and persuasive response.
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