Roberts Recusal From ABA Case a Sign of Strict
Standards? Lily
Henning Legal
Times 08-15-2005
Judge John Roberts Jr. is bowing out of a
high-stakes federal appeals court case involving the American Bar
Association.
The Supreme Court nominee last week recused
himself from the case, in which the ABA is a party, months after he
heard oral arguments in the matter.
No reason was given for
the recusal, but the ABA has long evaluated the qualifications of
Supreme Court nominees and has yet to render a decision on Roberts.
The Senate historically has considered the ABA's views in confirming
judicial candidates.
The U.S. Court of Appeals for the D.C.
Circuit, where Roberts now sits, issued a brief order announcing the
recusal on Aug. 9. The court, Roberts, and the White House all would
not comment on why Roberts stepped away from the case.
The
case could have an impact on the way law firms do business. The suit
was brought by the ABA and the New York State Bar Association
against the Federal Trade Commission. The bar associations say that
the federal government has no right to hold lawyers to certain
privacy provisions in the 1999 Gramm-Leach-Bliley Act, which was
designed to protect consumers' personal financial information and
aimed largely at the financial services industry.
Roberts'
choice to leave the case, at a time when his every move is being
scrutinized, may be an exercise in extreme caution, some legal
experts say.
"He might have been concerned about the
appearance of quid pro quo -- that a certain ruling was to thank
them for their ranking," says Monroe Freedman, a specialist in legal
ethics and a professor and former dean at Hofstra University School
of Law.
An ABA committee made up of 15 lawyers, chaired by
Thomas Hayward Jr., a real estate lawyer in Chicago, hasn't yet
issued its opinion on Roberts, but says it will do so before the
Senate opens Roberts' confirmation hearings, expected to begin Sept.
6. The ABA declined to comment because its lawsuit is pending.
The association gave Roberts a well-qualified rating -- its
highest -- when he was nominated to the D.C. Circuit in 2001.
For the ABA and the White House, the ratings have immediate
significance. The association was addressed last week by Attorney
General Alberto Gonzales, who was instrumental in displacing the
association from its traditional role in vetting White House
judicial nominees. But Gonzales told the ABA at its annual
conference on Aug. 8 that he "looked forward to a good and fair
examination of Roberts' qualifications."
Four years ago, in
a letter to then-ABA President Martha Barnett, Gonzales, then-White
House counsel, wrote that it was "particularly inappropriate to
grant a preferential, quasi-official role to a group, such as the
ABA, that takes public positions on divisive political, legal, and
social issues that come before the courts."
Both Hofstra's
Freedman and Steven Lubet, a legal ethics expert at Northwestern
University School of Law, say that Roberts' recusal is unusual in
part because of the rare circumstances in which a judge nominated to
a higher court is asked to hear a case involving a group that is
evaluating his professional credentials.
Lubet says if
Roberts is confirmed to the high court, he could alter the way the
Court views recusals, because he is holding himself to what appears
to be a particularly rigorous standard. It is within the discretion
of all federal court judges to decide whether to sit out a case
because of a connection to the parties.
Last year, Supreme
Court Justice Antonin Scalia famously refused to recuse himself from
hearing a case against Vice President Dick Cheney regarding the
energy task force that he led after it was discovered that Scalia
had a short time before taken a duck-hunting trip with Cheney.
"The Supreme Court recusal process needs more attention. It
demonstrates at a minimum that Roberts is willing to think hard
about it," Lubet says. "It would be a great contribution if Judge
Roberts were to raise those concerns internally."
Roberts'
recusal could also have practical implications for the ABA's suit.
He was part of the three-judge panel that heard oral arguments in
May.
Lawyers are for the most part licensed and regulated by
state bar associations. The groups challenging the FTC's application
of the Gramm-Leach-Bliley privacy provisions to lawyers argue that
existing state laws governing confidentiality are adequate. If the
government wins the case, lawyers who give any kind of financial
advice, in addition to providing reassurances of attorney-client
privilege, would be required to notify clients that they won't
market or sell private data about them to other companies. Some
firms say the rules, which the FTC agreed not to enforce until the
litigation ends, would be cumbersome and confusing to clients.
Because of Roberts' record of championing states' rights and
a limited role for the federal government in regulatory matters, the
lawyers groups believed Roberts would look favorably on the ABA's
arguments.
"We thought we had a very strong panel of judges
who would potentially be receptive to our argument," says Steven
Krane, a partner with Proskauer Rose in New York who argued the case
for the New York Bar Association in the D.C. Circuit. Krane says the
recusal was "appropriate."
The case could be reargued if a
third judge is added, or the two remaining judges, Chief Judge
Douglas Ginsburg and Judge David Sentelle, both GOP appointees,
could issue a decision on their own. They might also opt to bring in
a third judge to read the briefs and weigh in, without hearing
arguments again.
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