The Supreme Court is set to hear a pair of cases challenging affirmative action initiatives regarding college admissions. The anti-affirmative action group Students for Fair Admissions (SFFA) have two lawsuits pending against Harvard College and UNC. They claim both colleges discriminate against Asian American applicants and violate civil rights law by considering race in their admissions processes. After two court decisions upheld Harvard’s admissions practices, the SFFA appealed to the Supreme Court.
The Senate hearings to consider Judge Ketanji Brown Jackson’s nomination for the Supreme Court begin next week. Some are already looking at the judge’s Harvard ties as a point of contention. ABC News reports Judge Jackson will face calls to recuse herself from the pending affirmative action case.
Jackson currently sits on the university’s Board of Overseers that “provides counsel to the University’s leadership on priorities, plans, and strategic initiatives,” as Harvard’s website shows. A school spokesman states, “Jackson’s six-year Harvard board term concludes on May 26.” The term would end months before the Supreme Court would hear any oral arguments regarding the affirmative action case.
Still, some professors like George Washington University law professor Jonathan Turley feel just holding such a position is grounds for recusal.
“It would be profoundly inappropriate for a jurist to sit on a case for a school in which she has held a governing position and a role in setting institutional policies,” George Washington University law professor Jonathan Turley wrote in a column this month. “For that reason, Jackson will be asked in her confirmation hearing to confirm whether she will recuse herself from the Harvard case.”
Others think Senate Republicans will use the hearings as an opportunity to pick apart the nomination itself – specifically, President Biden’s pledge to prioritize a Black woman judge for the position.
“I expect one of the first questions at this hearing to be: You are highly qualified, but a lot of other highly qualified people weren’t considered for this job because of their race. Would you think that was lawful if it happened at a private employer?” said Sarah Isgur, a former Trump Justice Department lawyer and ABC News contributor.
Federal law stipulates that federal judges must recuse themselves from cases whenever their “impartiality might reasonably be questioned” or when “the judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding.”
Recusal is based on the honor system. Last year, this issue was raised when Democratic members of the House and Senate Judiciary committees called for Supreme Court Justice Amy Coney Barrett to recuse herself from the Americans for Prosperity Foundation v. Bonta case. Koch-backed Americans for Prosperity Foundation ran a seven-figure dark money campaign pushing the Senate to confirm Barrett to the Supreme Court quickly. Justice Barrett refused these calls.