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John Roberts Scotus Justice Nomination Jepordized by Illegal Interviews with Gonzales

IMO, this is outrageous because all of these officials, especially Gonzales and Roberts, knew what constitutes conflict of interest, and did it anyway. They demonstrate contempt or disregard for legal ethics, the law itself, and the rights of those who petition the federal court in criminal matters.

I invite those who disagree with my assessment to provide links to opinions of their own legal scholars who disagree with those whose opinions are quoted in this article. Please refrain from posting "talking points", or your own undocumented opinions and the usual "one liners" that add nothing to the threads on this forum. White House spokeswoman Dana Perino beat you to it.
Put up....or....don't post!

Quote:

http://www.newsday.com/news/printedi...onalnews-print
Roberts meeting 'illegal'
Legal ethicists say White House interview jeopardized judge's impartiality in a case on military tribunals
BY TOM BRUNE
WASHINGTON BUREAU

August 18, 2005

WASHINGTON -- The White House broke the law when it interviewed D.C. Circuit Judge John G. Roberts last spring for the Supreme Court as he heard a challenge to the president's military tribunals, three legal ethicists said yesterday.

Roberts, nominated by President George W. Bush on July 19, should have recused himself from Hamdan v. Rumsfeld to avoid an "appearance of partiality," the professors said in the online magazine Slate.

"Federal law deems public trust in the courts so critical that it requires judges to step aside if their 'impartiality might reasonably be questioned,' even if the judge is completely impartial as a matter of fact," wrote Stephen Gillers, David Luban and Steven Lubet.

White House spokeswoman Dana Perino dismissed the article. "There was no conflict whatsoever," she said.

The article changed the mind of Hofstra University law professor Monroe Freedman, who at first backed the White House. He said Roberts probably broke the law but that it wasn't enough to disqualify him from the high court.

The charge came on the same day the American Bar Association called Roberts "well qualified" - its highest rating - for the Supreme Court.

The Slate article said if one side in a case "can secretly approach the judge about a dream job while the case is still under active consideration," trust in the judiciary suffers because it's not clear how the offer affected the judge's decision.

Sen. Charles Schumer (D-N.Y.), who will question Roberts in confirmation hearings next month, said Roberts should explain" as soon as possible" why he continued hearing the case.

Gillers, a legal ethicist at New York University Law School, saw no problem when Newsday told him in July that Bush met with Roberts about the vacancy July 15, the same day the D.C. court ruled 3-0 in Bush's favor in Hamdan.

But Gillers told Newsday yesterday he changed his mind after Roberts disclosed the White House interviews in his Senate questionnaire Aug. 2.

He said Attorney General Alberto Gonzales interviewed him April 1, six days before oral arguments in the Salim Ahmed Hamdan case.

During his deliberations on Hamdan, White House officials interviewed Roberts in person twice and on the telephone several times. On May 3, Roberts met with Vice President Dick Cheney, top Bush adviser Karl Rove, Chief of Staff Andrew Card, Gonzales and other senior aides.

The issue could affect the decision in Hamdan, which challenged the legality of the commission created by the president to try alleged terrorists, since Hamdan's attorneys did not know of the interviews and could complain about a conflict.
Copyright 2005 Newsday Inc.

Quote:

http://www.slate.com/id/2124603
Improper Advances
Talking dream jobs with the judge out of court.
By Stephen Gillers, David J. Luban, and Steven Lubet
Posted Wednesday, Aug. 17, 2005, at 11:50 AM PT

The appearance of partiality?

Four days before President Bush nominated John G. Roberts to the Supreme Court on July 19, an appeals court panel of three judges, including Judge Roberts, handed the Bush administration a big victory in a hotly contested challenge to the president's military commissions. The challenge was brought by Salim Ahmed Hamdan, a Guantanamo detainee. President Bush was a defendant in the case because he had personally, in writing, found "reason to believe" that Hamdan was a terrorist subject to military tribunals. The appeals court upheld the rules the president had authorized for these military commissions, and it rejected Hamdan's human rights claims—including claims for protection under the Geneva Conventions.

At the time, the close proximity of the court's decision and the Roberts nomination suggested no appearance of impropriety. Roberts had been assigned to hear the appeal back in December, and it was argued on April 7. Surely he had decided the case long before the administration first approached him about replacing Supreme Court Justice Sandra Day O'Connor, who had announced her retirement on July 1. As it turns out, however, the timing was not so simple.

The nominee's Aug. 2 answers to a Senate questionnaire reveal that Roberts had several interviews with administration officials contemporaneous with the progress of the Hamdan appeal. One occurred even before the appeal was argued. Attorney General Alberto Gonzales interviewed the judge on April 1. Back then, it was an ailing Chief Justice William H. Rehnquist, not Justice O'Connor, who was expected to retire. The attorney general, of course, heads the Justice Department, which represents the defendants in Hamdan's case. And as White House counsel, Gonzales had advised the president on the requirements of the Geneva Conventions, which were an issue in the case.

The April interview must have gone quite well because Roberts next enjoyed what can only be labeled callback heaven. On May 3, he met with Vice President Dick Cheney; Andrew H. Card Jr., the White House chief of staff; Karl Rove, Bush's chief political strategist; Harriet Miers, the White House legal counsel; Gonzales; and I. Lewis Libby, the vice president's chief of staff. On May 23, Miers interviewed Judge Roberts again.

Hamdan's lawyer was completely in the dark about these interviews until Roberts revealed them to the Senate. (Full disclosure: Professor Luban is a faculty colleague of Hamdan's principal lawyer.) Did administration officials or Roberts ask whether it was proper to conduct interviews for a possible Supreme Court nomination while the judge was adjudicating the government's much-disputed claims of expansive presidential powers? Did they ask whether it was appropriate to do so without informing opposing counsel?

If they had asked, they would have discovered that the interviews violated federal law on the disqualification of judges. Federal law deems public trust in the courts so critical that it requires judges to step aside if their "impartiality might reasonably be questioned," even if the judge is completely impartial as a matter of fact. As Justice John Paul Stevens wrote in a 1988 Supreme Court opinion, "the very purpose of [this law] is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible." The requirement of an appearance of impartiality has been cited in situations like the one here, leading to the disqualification of a judge or the reversal of a verdict.

In 1985, a federal appeals court in Chicago cited the requirement of the appearance of impartiality when it ordered the recusal of a federal judge who, planning to leave the bench, had hired a "headhunter" to approach law firms in the city. By mistake—and, in fact, contrary to the judge's instructions—the headhunter contacted two opposing firms in a case then pending before the judge. One firm rejected the overture outright. The other was negative but not quite as definitive. Writing for the Court of Appeals, Judge Richard A. Posner emphasized that the trial judge "is a judge of unblemished honor and sterling character," and that he "is accused of, and has committed, no impropriety." Nevertheless, the court ordered the judge to recuse himself because of the appearance of partiality. "The dignity and independence of the judiciary are diminished when the judge comes before lawyers in the case in the role of a suppliant for employment. The public cannot be confident that a case tried under such conditions will be decided in accordance with the highest traditions of the judiciary." Although both law firms had refused to offer him employment, the court held that "an objective observer might wonder whether [the judge] might not at some unconscious level favor the firm … that had not as definitively rejected him."

In the fall and winter of 1984, a criminal-trial judge in the District of Columbia was discussing a managerial position with the Department of Justice while the local U.S. attorney's office—which is part of the department—was prosecuting an intent-to-kill case before him. Following the conviction and sentence, the judge was offered the department job and accepted. On appeal, the United States conceded that the judge had acted improperly by presiding at the trial during the employment negotiations. It argued, however, that the conviction should not be overturned. The appeals court disagreed. Relying on Judge Posner's opinion in the Chicago case, as well as the rules of judicial ethics, the court vacated the conviction even though the defendant did not "claim that his trial was unfair or that the [the judge] was actually biased against him." The court was "persuaded that an objective observer might have difficulty understanding that [the judge] did not … realize … that others might question his impartiality."

So, the problem in Hamdan is not that Roberts may have cast his vote to improve his chances of promotion. We believe he is a man of integrity who voted as he thought the law required. The problem is that if one side that very much wants to win a certain case can secretly approach the judge about a dream job while the case is still under active consideration, and especially if the judge shows interest in the job, the public's trust in the judiciary (not to mention the opposing party's) suffers because the public can never know how the approach may have affected the judge's thinking. Perhaps, as Judge Posner wrote, the judge may have been influenced even in ways that he may not consciously recognize.

A further complication here is that Roberts' vote was not a mere add-on. His vote was decisive on a key question of presidential power that now confronts the nation. Although all three judges reached the same bottom line in the case, they were divided on whether the Geneva Conventions grant basic human rights to prisoners like Hamdan who don't qualify for other Geneva protections. The lower court had held that some provisions do. Judge Roberts and a second judge rejected that view. The third judge said Geneva did apply, but found it premature to resolve the issues it raised. Hamdan has since asked the Supreme Court to hear the case.

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. The government litigates too many cases for that to make any sense. But Hamdan was not merely suing the government. He was suing the president, who had authorized the military commissions and who had personally designated Hamdan for a commission trial, explaining that "there is reason to believe that [Hamdan] was … involved in terrorism."

Moreover, the Hamdan appeal is the polar opposite of routine for at least two reasons. First, its issues are central to the much-disputed claims of broad presidential power in the war on terror. Second, the court's decision on the Geneva Conventions has a spillover effect on the legality of controversial interrogation techniques used by the government at Guantanamo and elsewhere. That is because the same provision of the Geneva Conventions that would protect Hamdan from unfair trials also protects detainees from cruel, humiliating, or degrading treatment. The D.C. Circuit's decision rejecting the Geneva Conventions' trial protections—a decision that hinged on Roberts' vote—also strips away an important legal safeguard against cruel and humiliating treatment that may fall just short of torture.

Given the case's importance, then, when Gonzales interviewed Roberts for a possible Supreme Court seat on April 1, the judge should have withdrawn from the Hamdan appeal. Or he and Gonzales, as the opposing lawyer, should have revealed the interview to Hamdan's lawyer, who could then have decided whether to make a formal recusal motion. The need to do one or the other became acute—indeed incontrovertible—when arrangements were made for the May 3 interview with six high government officials. (We don't know how long before May 3 the arrangements were made.)

We do not cite these events to raise questions about Roberts' fitness for the Supreme Court. In the rush of business, his oversight may be understandable. What is immediately at stake, however, is the appearance of justice in the Hamdan case and the proper resolution of an important legal question about the limits on presidential power. Although the procedural rules are murky, it may yet be possible for Judge Roberts to withdraw his vote retroactively. That would at least eliminate the precedential effect of the opinion on whether the Geneva Conventions grant minimum human rights to Hamdan and others in his position. Better yet, the Supreme Court can remove the opinion's precedential effect by taking the Hamdan case and reversing it.

Stephen Gillers is the Emily Kempin Professor of Law at the New York University School of Law. David J. Luban is the Frederick J. Haas professor of law and philosophy at Georgetown University Law Center. Steven Lubet is a professor of law at Northwestern University School of Law.

I'm sorry Host, but anyone can post in this thread so long as they follow forum rules. It would be a sorry site if one had to research article after article to have a discussion. (pun intended)

Quote:

Originally Posted by host

Why so angry? Host, can you explain to me why any of us should care that this happened? Does this have an impact on the quality of Justice Mr. Roberts would make if he were confirmed? If not, this thread is rather pointless.

With the earlier disparagement about short answers, I am once again reminded of the words of Mark Twain:

Quote:

A young man charged with recruiting speakers for a local event caught Mark Twain in a hotel lobby. The young man enthusiastically asked him to speak to the local group that evening for “just five minutes."

Mark Twain replied with regret that it would not be possible, because he would need at least two hours to prepare a five minute speech, and he didn’t have the time.

“Wow!” The young man exclaimed. “How long would you need to prepare if I asked you to speak for two hours?” “Well,” Mark Twain replied, “If you asked me to speak for two hours, I’m ready right now.”

In keeping with the above sentiment, I have condensed the above articles somewhat, to wit:

Quote:

He said Roberts probably broke the law but that it wasn't enough to disqualify him from the high court.

all three judges reached the same bottom line in the case.

We do not cite these events to raise questions about Roberts' fitness for the Supreme Court.

To sum it up, everyone involved (except for Host) does not consider this episode to be grounds to remove Roberts from consideration.

Quote:

Originally Posted by Marvelous Marv

Quote:

He said Roberts probably broke the law but that it wasn't enough to disqualify him from the high court.

Laws and legal ethics don't apply sometimes, they apply all the time. Legal professionals are held to high ethical standards for a reason, and that reason is to ensure the legal system works fair and impartially for all involved. If Roberts cannot follow this country's laws, and the basic ethical rules of his profession, he is unfit for service.

If Roberts did break the law in this matter, there should be an investigation and indictment.

I read your posts with interest and usually a good deal of sympathy, but I think this time thou dost protest too much.

It would be a pretty obscure group of political ethicists that would actively defend Gonzales and Roberts in this case, which hasn't amounted to much in any arena I'm aware of. Although I think you're right that the conflict is obvious, it certainly isn't a fatal or even a major chink in an argument for Roberts as a justice for the Supreme Court, as the last paragraph in the Slate article clearly states. Politically, it really does not amount to anything. The man will be a justice -- it was a savvy choice by the Bush administration, as much as I hate to say it.

Meembo, once he is a supreme court justice, won't Roberts need to recuse himself when Bush's policy of detaining alledged terrorists rises to that judicial level?

Quote:

Originally Posted by vautrain

I'll agree with that on the day Teddy Kennedy is indicted.

We observe the machinations of a POTUS and potential chief justice of the SCOTUS, both alarmingly found to be lacking in their ethics and their honesty and sense of what is fair and just. What the FUCK has happened to any semblance of a commitment to "justice for all"?

The MSM gleefully repots the elevation the nomination of criminal judge Roberts by criminal POtuS Bush, with no mention of what has been reported in this thread. I mourn for the future of my country!

Quote:

http://www.thenation.com/doc/20050919/editors
Roberts, Without Illusions

As the opening gavel sounds in Judge John Roberts's confirmation hearing, what have we learned about George W. Bush's first pick for the Supreme Court? History counsels caution in predicting the performance of Supreme Court nominees. This magazine opposed David Souter based on his scant but alarming record as New Hampshire Attorney General, but he is today one of the Court's most reliable civil libertarians. JFK's nominee Byron White turned out to be a premature social conservative.

Yet most Justices remain consistent with the broad outlines of their public biography, and Roberts, unlike Souter, is no stealth nominee. Reams of documents testify to his long-held views and activities. So what do we know about Roberts and about what his confirmation might mean for this magazine's enduring concerns with civil rights, civil liberties and social justice?

For one thing, based on his Senate questionnaire, we now know that the judge is at the center of an ethics scandal. Attorney General Gonzales, Karl Rove, Dick Cheney and other top officials interviewed him for the nomination in May, the very period he was hearing the Administration's appeal in the crucial Ahmed Hamdan case, a sweeping challenge to the extraordinary military commissions at Guantánamo. Indeed, Roberts was first interviewed by Gonzales on April 1, before Hamdan's appeal was heard. These secret meetings should sound an alarm across the partisan divide. Roberts and two other judges ruled in favor of the commissions just four days before the White House announced Roberts's Supreme Court nomination. Hamdan's lawyers knew nothing about Roberts's secret job interviews. As legal ethicists Stephen Gillers, David Luban and Steven Lubet pointed out in Slate, these interviews "violated federal law on the disqualification of judges," specifically the statutory principle that judges should step aside if their "impartiality might reasonably be questioned." The huge stakes for Roberts, and the equally massive stakes for the Administration in its challenge to the Geneva Conventions and other impediments to the military commissions, raise Roberts's role in the Hamdan case beyond mere appearance of conflict to the real thing. Does anyone really think that on July 19 Bush would have introduced Roberts as his nominee if four days earlier he had voted the other way? Roberts should have recused himself from the case. He could at least have notified Hamdan's lawyers of his conflict of interest. The fact that Judge Roberts--a wired-for-life GOP activist who advised the party in Bush v. Gore--didn't do either ns that his impartiality fails the smell test.

Quote:

Originally Posted by Marvelous Marv

I'll agree with that on the day Teddy Kennedy is indicted.

You're saying that you'll only agree that professional ethics are important for a Supreme Court nominee if Ted Kennedy is indicted?

Quote:

Originally Posted by host

I invite those who disagree with my assessment to provide links to opinions of their own legal scholars who disagree with those whose opinions are quoted in this article. Please refrain from posting "talking points", or your own undocumented opinions and the usual "one liners" that add nothing to the threads on this forum. White House spokeswoman Dana Perino beat you to it.

I do not understand. Are you saying that "undocumented" opinions have no value, and only quotes of other's opinions are worth reading?

Quote:

Originally Posted by Elphaba

Meembo, once he is a supreme court justice, won't Roberts need to recuse himself when Bush's policy of detaining alledged terrorists rises to that judicial level?

SCOTUS members cannot lose their seats, so they owe nothing to their political "masters", job-wise, once they have the job.

The conflict here is "someone talks to you about getting a dream job, while at the same time you are hearing a case that they care about".

Quote:

Originally Posted by Yakk

I do understand what the current conflict is. My question concerned a particular situation in which Roberts, as a supreme court justice, may find himself reviewing his own decision from a lower court. Recusing oneself does not mean losing their seat on the bench.

Quote:

Originally Posted by host

The MSM gleefully repots the elevation the nomination of criminal judge Roberts by criminal POtuS Bush, with no mention of what has been reported in this thread.

At least you are not trying to hide your extreme bias.

Unfortunatly for you, most mainline Dems don't think there is any reasonable reason to vote against Roberts.

From what I've seen, I agree.

This tempest in a teapot aside, he seems to be a pretty solid nominie. I could wish to know his stance on the 2nd a little better (and I did try), but can't have everything.

Quote:

Originally Posted by Lebell

Bottomline, Lebell, IMO, we are witnessing a severely ethically challenged POTUS, using an ethically challenged shill, Ronald Rotunda, masquerading as an authority on legal ethics, who is offering an "impartial" opinion to Arlen Specter and to the American people, via the press, about the judicial conduct of an equally ethically deficient SCOTUS chief justice, nominee, John Roberts. Why the need to highlight the opinion of an obviously biased political 'hack' like Ronald Rotunda, if Roberts acted properly in not recusing himself and not informing Hamdan's attornery about meetings concerning a "dream job" on the sCOTUS, with Gonzalez, Rove, Card, et al, of the Bush admin? Should none of these officials not be expected to "know better" than to meet with Roberts when they did, and then withhold the fact that they met, from Hamdan?

Tell me what is more important a matter to dig deeply into than Bush's SCOTUS "appointments? They have more potential impact on the future of each of us, and if this research is any indication, these Bush "decisions" will be as questionable as every other major decision of his presidency has been.......

I want better for my country's highest court and it's presidency....why do you seem eager to settle for so little and chide me for having "extreme views", at the same time. Is it not equally "extreme" not to question the "stench" that these creeps bring to our formerly revered federal institutions ?

Here is an example of "fair and balanced" reporting from the news service that vP Cheney admits to "usually" watching....

Quote:

http://www.foxnews.com/story/0,2933,166689,00.html
Dems Question Roberts on Recusal Decision
Thursday, August 25, 2005

......Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, asked another pre-eminent legal scholar for his views on the issue. He received a vindication of Roberts, and of federal judges generally who wish to trade-up their seats on the federal bench.

"These people are getting positions offered all the time and there's never been a requirement they have to recuse or disqualify themselves in cases where the United Staes is a party," said George Mason University law professor Ronald Rotunda........

Why the spectacle of the white house caught in the act of shilling a partisan "hack" as a legal ethics "expert", supposedly offering a learned and impartial opinion of Roberts "ethics" in the Hamdan v. Rumsfeld case, if Roberts is the impeccable nominee that the white house represents him to be?

Does Hamdan deserve even a fucking charade of fair and just legal process, at the hands of Gonzalez, Roberts, Rumsfeld, and Bush? These "leaders" appear to be deficient in so many areas that I cannot tolerate in a POTUS, an Attorney General, or a SCOTUS chief justice, that I have no choice but to lead you to this info. Please consider it, and not be distracted by your opinion of me..........

The quote boxes below are numbered to reference support of the following points:

(1) Roberts knows about the concept of recusal. He recused himself from a case involoving the ABA.
It is the opinion of a legal ethics specialist that Roberts recused himself because the ABA would
soon evaluate his suitability, ironically, for an appointment to justice of the Scotus!

(2) In a reply to an apparent request from Senate judiciary chairman, Arlen Specter (R-pa) legal ethics
"expert", Ronald Rotunda concludes that Roberts did not act improperly by not recusing himself in the
Hamdan v. Rumsfeld case. No where in the letter, or in reports from MSM about Rotunda's opinion, is it
stated that Rotunda himself has recently served as "a Defense Department adviser on the military commissions",
where he defended Bush administration policy.

Quote:

http://mason.gmu.edu/%7Errotunda/bio.htm
..............Ronald D. Rotunda, the George Mason University Foundation Professor of Law, joined the faculty in 2002.

......From early June, 2004 to early June, 2005, he was on leave from the law school and was the Special Counsel to the General Counsel of the Department of Defense. .......

(3) Unlike other MSM news reporting, the WSJ article of aug. 25 stated, "The White House responded by marshaling two legal experts, including one who recently completed a term as a Defense Department adviser on the military commissions, George Mason University Prof. Ronald Rotunda." Incomplete reports that omit Rotunda's background:

Quote:

http://www.washingtonpost.com/wp-dyn...082402017.html
.............Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) is looking into the case, too. In a letter sent to Specter this week, Ronald D. Rotunda, a law professor at George Mason University, said he was asked by the chairman about the propriety of Roberts's involvement in the terrorism case and found that he did nothing improper, according to a copy of the letter................

(4) Ronald Rotunda defends white house military hearing procedure in a letter to the editor of the American Prospect, against the conflicting argument of Yale professor, Bruce Ackerman on Oct. 15, 2004. This raises the question in my mind as to the strength of the white house argument that Roberts did not act improperly, when one of the two legal ethicists whose opinion it cites to the press, appears to be a biased, "shill", with an ehtics conflict of his own, in this matter!

(5) More research from thinkprogress org that cites a similar case of Rotunda coming out in a partisan defense of Clarence Thomas in 1991, at the behest of C. Boyden Gray, an attorney who is still working closely with this white house to support Robert's nomination, via:

Quote:

http://committeeforjustice.org/contents/about/
About Us

The Committee for Justice (CFJ) and Committee for Justice Foundation (CFJF) is composed of eminent leaders, former government officials, legal scholars, and practitioners based in Washington, DC united to defend and promote constitutionalist judicial nominees to the federal courts and educates the public on the importance of judges in American life. CFJ and CFJF were founded in 2002 by former White House Counsel C. Boyden Gray, the groups’ chairman..................

c. Boyden Gray's http://committeeforjustice.org/ website could pass for the John Roberts "2005" campaign committee site...

(1)

Quote:

http://www.law.com/jsp/article.jsp?id=1123837514534
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..........

........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.

(2)

Quote:

http://legalethicsforum.typepad.com/...ethics_pr.html
August 29, 2005
Professor Rotunda Replies to Profs Gillers, Luban & Lubet (Roberts, Recusal, and Hamdan)

22 August 2005
The Honorable Arlen Specter Chairman, Committee on the Judiciary United States Senate
224 Dirksen Senate Office Building Washington, DC 20510

Re: PROPRIETY OF JUDGE ROBERTS' FAILURE TO RECUSE HIMSELF SUA SPONTE

Dear Chairman Specter:

Introduction

You have asked me about the propriety of Judge John Roberts' failure to recuse himself in the case of Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005).......

........Conclusion

Past practice of other judges who have accepted or considered appointment for other offices, including past practice of Judge Roberts' predecessors on the D.C. Circuit, demonstrates that he did not violate 28 U.S.C. ' 455(a). If we were to interpret this statute broadly, contrary to the advice of the American Bar Association, the American Law Institute, and the case law -- if we were, in effect, to change the historical practice and adopt the Gillers Rule -- we would create a new set of problems. In particular, we would be giving members of the Administration the power to manipulate who sits on panels simply by considering one or more judges for other positions.

Instead, in my opinion, we should follow the advice of Scott v. United States, 559 A.2d 745 (D.C. 1989), the case on which Gillers purports to rely. Scott says, at most, that a recusal obligation arose only after the judge "had decided to accept the position in the Executive Office for United States Attorneys." In Judge Roberts' situation, by the time he was offered another judicial position, the Hamdan case had been decided.

Sincerely,

Ronald D. Rotunda

(3)

Quote:

http://online.wsj.com/public/article...f_main_tff_top

Recusal Questions for Roberts
Two Senators Ask About Participation
In Military Tribunal Case

By JESS BRAVIN
Staff Reporter of THE WALL STREET JOURNAL
August 26, 2005; Page A4

WASHINGTON -- The Navy attorney assigned to represent a Guantanamo prisoner facing war crimes charges before a military commission is confronting a dilemma: How to proceed now that the case has been injected into the Supreme Court nomination battle?

A three-judge appeals court panel last month rejected Lt. Cmdr. Charles Swift's challenge to the commission's legality. One of the judges was John Roberts, who in April heard arguments about the Bush administration's policy as he was discussing a Supreme Court appointment in private conversations with the White House. On July 15, when Judge Roberts met with President Bush for the job-clinching interview, he joined a ruling in favor of the defendants, who included Mr. Bush......

............After the article was published, two Democrats on the Senate Judiciary Committee, Russell Feingold of Wisconsin and Charles Schumer of New York, wrote Judge Roberts this week asking him to explain why he didn't recuse himself and whether he researched the propriety of remaining on the case.

Democrats studying Judge Roberts's legal opinions and prior work in the Reagan and first Bush administrations have found little to like about his conservative policy views. But until now, no ethical questions have been raised.

The White House responded by marshaling two legal experts, including one who recently completed a term as a Defense Department adviser on the military commissions, George Mason University Prof. Ronald Rotunda. In letters addressed to Judiciary Committee Chairman Arlen Specter, Prof. Rotunda and Professor Thomas D. Morgan of George Washington University argued that Judge Roberts's impartiality could not "reasonably be questioned," so he broke no legal or ethical rules.

(4)

Quote:

http://www.prospect.org/web/page.ww?...articleId=8746
Letter to the Editor
Two law professors argue over the right way to swear in judges on a military commission.

By Bruce Ackerman and Ronald D. Rotunda
Web Exclusive: 10.15.04

...........Professor Ackerman wrote two articles, both making the same mistake and making astounding accusations. He wrote in one article that "these four experts" who took the oath "should know better." Actually, someone else should know better, and Professor Ackerman sees that person every morning when he looks in the mirror and shaves.

Ronald D. Rotunda
George Mason University Foundation Professor of Law
George Mason University School of Law
Arlington, VA

(5)

Quote:

http://thinkprogress.org/2005/08/27/rotunda-ethics/

Legal Ethicist Defending Roberts Has History of Questionable Conduct

Ronald Rotunda is the law professor who argues that Judge John Roberts didn’t do anything wrong when he “heard arguments about the Bush administration’s policy [on military commissions in Guantanamo] as he was discussing a Supreme Court appointment in private conversations with the White House.”

Yesterday we revealed that Rotunda — who is presenting himself as a neutral legal ethicist — was, until very recently, a paid military advisor to the Department of Defense on military commissions.

It turns out Rotunda is one legal ethicist with a history of questionable conduct. From Newsweek, 9/16/1991:

How does a law professor get appointed to the federal bench? Cozying up to the White House can’t hurt. University of Illinois professor Ron Rotunda submitted his name for a spot last spring. He didn’t get the job — but he’s now part of the PR machine for Supreme Court nominee Clarence Thomas. A legal ethics expert, he’s phoned reporters, published op-ed pieces and, at the behest of White House counsel C. Boyden Gray, written an essay absolving Thomas of unethical conduct in a controversial case.

Did C. Boyden Gray — who is working closely with the White House to smooth Roberts’s confirmation as head of the Committee for Justice — call Rotunda again?

From the perspective of a European, I'd add that the issue seems to come down to one of trust.

A judge has to be seen to be impartial, even if it ws not illegl, it ooks like a grave error of judgement on his part to take part in a case that was essentially against his (hoped for) future employer.

e may well have a totally clean conscience that he would have made the same decisions regardless, but seeing as the evidence of that is locked up in his head, how could he prove it.

Quote:

Originally Posted by vautrain

This I think....is the Jist of it all. While Host can be longwinded in his posts, it seems he at least tries to back up opinion with Data. I find it interesting that the member of this forum willing to do the research is ridiculed for doing so, and those doing the bitching rarely place more than one line in replys.

If even one paragraph of the ten posted are accurate.....Host has placed a books worth of damning information in these threads, and while I admit I rarely read everything he places in here (just too much sometimes), I can appreciate the effort that goes into it.

Now....if only we had a Host in the conservative dugout....

Quote:

Originally Posted by vautrain

You're saying that you'll only agree that professional ethics are important for a Supreme Court nominee if Ted Kennedy is indicted?

No, I'll agree that investigations should be conducted equitably for all. Until Teddy Kennedy is indicted for negligent homicide or second degree murder, any Democrat requesting an investigation of a Republican is an extreme hypocrite.

Quote:

Originally Posted by tecoyah

The ridicule has been, at least in some measure, because he included a great deal of unrelated information, accidentally posted a reference that contradicts his position, or edited from his references some important information that negates his argument.

I also think he's given to extreme hyperbole, but that, of course is an opinion, and such are always open to debate.

Quote:

Originally Posted by Marvelous Marv

well, which is it?
You ridicule him because he posted info that contradicted his position?
(although, why this is grounds for ridicule is beyond me. last complaint I read was that he wasn't "honest" because he didn't include in his sources information that contradicted his position)
Or you ridicule him because he edits stuff out that contradicts his position?
(although, why this is grounds for ridicule is beyond me. there is no requirement when putting forward one's argument to make the opposition's case for them)

Or are you going to ridicule him no matter what he does?

Someone mentioned in this topic or another that the Politics Forum remains the same based upon the daily number of personal attacks against Host for any number of reasons. These attacks invade every topic that Host starts or makes a contribution.

If I knew how to start a poll topic, it would be totally dedicated to Host's posts so that didn't intrude on every other frickin' topic. How about a one thru ten scale where we have these two extremes:

1. Host is a communist extremist who only wishes to destroy Mom, apple pie, and all that true red-blooded Americans' hold dear.
.
.
10. Host is the only visionary in the politics forum and only wishes to save us from our own ignorance.

C'mon, people. Give it a rest and just give your considered opinion about any given topic, without the personal attacks. This forum is far different than it was in January, but there is still room for improvement. I include myself in that criticism.

From what i understand, this was not illegal because of the attorney client privlege but i could be wrong, and myabe host gets flamed because his links take so friggin long to read

Damn that host and all his information! :)

Quote:

Originally Posted by meembo

Damn that host and all his information! :)

Maybe that should be option 4 in the poll. :D

Quote:

Originally Posted by Marvelous Marv

Not that I'm convinced justice was served, but there were two investigations into Cappaquiddick, one of them led to a conviction of Ted Kennedy, the other one did not return an indictment. Now, how many more investigations would you like to be conducted?

And, I'm not a Democrat.

Anyway, your original statement was:

Quote:

Originally Posted by Marvelous Marv

I'll agree with that on the day Teddy Kennedy is indicted.

Given that you think any Democrat requesting an investigation of a Republican is an "extreme hypocrite," are you a Democrat, and you don't want to be an "extreme hypocrite?" Or, are you a Republican, and you just think two wrongs make a right?

Quote:

Originally Posted by vautrain

Unless I'm mistaken (or misread), he was making the "extreme hypocrite" comment with the Ted Kennedy comment.

So, if he were to be indicted as suggested, then they wouldn't be hypocrites.