The Census Case Is Already Tainted

The most politically charged Supreme Court decision since Bush v. Gore will be decided with the vote of one Associate Justice who should have disqualified himself.

When the same federal judge angrily denounced a group of senators from one political party in a prepared statement on national TV, he committed the mother of all high-visibility violations of the Code of Conduct for United States Judges. It didn’t help that he called the senators’ behavior “an embarrassment,” and claimed without evidence that they had launched a leftist-financed, “calculated” conspiracy against him, “fueled with apparent pent-up anger” over the election of President Trump while seeking “revenge on behalf of the Clintons.”

We are speaking, of course, about Brett Kavanaugh and his imminent vote in Department of Commerce vs. New York, which focuses on the Trump Administration’s effort to add a citizenship question to U.S. census questionnaires.

The case, which is likely to be decided this month, is as political as a court case gets. Republicans strongly support the government’s insistence on adding the question. With equal fervor, Democrats oppose it, arguing that Congressional redistricting decisions will be made based on a census tally that undercounts likely Democratic voters in immigrant communities and strengthen the political power of whites.

Why should Kavanaugh recuse? The simple answer is that he has clearly shown a strong personal political bias. The judicial Code of Conduct requires recusal of all lower federal judges in such cases, and Chief Justice John Roberts has said that Supreme Court justices follow the Code voluntarily, even if they are not bound to do so by law. Canon 3(c)(1)(a) of the Code states: “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which the judge has a personal bias or prejudice concerning a party.”

Americans have not witnessed a clearer display of political bias than they saw on September 27, 2018. Under oath, Kavanaugh angrily attacked Democratic senators in his prepared rebuttal Christine Blasey Ford. As a result, there is little doubt that Kavanaugh’s impartiality “might reasonably be questioned” by a large group of Americans. The Code makes is clear that actual bias as well as the appearance of bias must be avoided.

This is why I and others filed formal misconduct complaints against Kavanaugh, asserting that he made “inappropriately partisan statements,” which are barred by the judiciary’s own rules. Harsh words have nothing to do with our concerns; bias has everything to do with it. His September diatribe showed us exactly where he stood. And it prompted more than 2,000 law professors to issue a public letter declaring Kavanaugh unfit for the Supreme Court.

It is true that Kavanaugh’s confirmation removed him from specific legal obligations regarding judicial conduct. However, the judiciary has not yet decided whether his statements as a lower-court judge ran afoul of the Code. My appeal to the judiciary’s final arbiter on conduct, the Committee on Judicial Conduct and Disability, is pending, as are appeals from other complainants. The Committee is overseen by the Judicial Conference, a policy-making body chaired by Chief Justice Roberts.

In his 2011 Year-End Report on the Federal Judiciary, Roberts addressed calls in Congress for a code of conduct for the Supreme Court by stating that the Justices are not exempt from the principles of the existing lower-court Code. He wrote: “All Members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations…The Justices follow the same general principles respecting recusal as other federal judges.”

This apparently does not include Kavanaugh, who has already taken part in oral argument in the census case. He knows or should know — and Chief Justice Roberts knows or should know — that in the census case, Kavanaugh’s impartiality “might reasonably be questioned.” Disqualification is not optional in such cases. Litigants rarely call on justices to recuse for fear of igniting a quiet reprisal. But the public knows bias when it sees it.

After his September outburst, Kavanaugh tried to calm the waters by repeatedly insisting that he would bring no bias or partisanship to the Supreme Court. The problem is, he professed the very same intent during testimony before his shocking display on September 27. Which Brett Kavanaugh will sit in judgment in Department of Commerce vs. New York? We just don’t know. It’s quite clear that Kavanaugh himself has no issue with the cloud over his participation in the case. For the good of the Court, however, Chief Justice Roberts should convince his colleague to recuse.