- The Washington Times - Tuesday, November 8, 2005

Chief Justice John G. Roberts Jr.’s recusal from the Supreme Court decision to review the legality of the special war crimes tribunal at U.S. Naval Base Guantanamo Bay, Cuba, would not prevent him from voting on the outcome of the case, court observers and legal historians said.

Chief Justice Roberts, who as a lower court judge ruled in favor of the tribunal system, has not said whether he will participate in Hamdan v. Rumsfeld, but court watchers said his vote could prevent a 4-4 tie on a case important to defining the scope of a president’s war powers.

“I don’t see any reason why he should recuse himself,” said Stephen B. Presser, a professor of legal history at Northwestern University’s School of Law.

Federal law does not call on justices to withdraw from cases they previously adjudicated and cites only financial ties as a reason for recusal. The court’s statement on selecting the Hamdan case noted merely that Chief Justice Roberts didn’t participate in the decision to hear the case. It didn’t say whether he would recuse himself from the arguments or any final decision.

The ultimate decision of whether to remove oneself is “up to the individual justice,” said Edward P. Lazarus, an appellate lawyer in Los Angeles who follows court developments.

The case arrives at the Supreme Court as a challenge to a ruling that Chief Justice Roberts joined on July 15 when he was a member of the U.S. Circuit Court of Appeals for the District of Columbia.

The ruling, issued days before President Bush announced Judge Roberts as a nominee for the Supreme Court, found that the Bush administration had legal authority to try suspects detained after September 11 through the special war-crimes commissions at Guantanamo.

“This is a problem as old as the republic,” Mr. Presser said, explaining that before 1871, Supreme Court justices regularly found themselves reviewing cases over which they previously presided in lower courts.

Until that year, he said, the justices were required to rotate around the country to act as trial court judges and rule on cases in the lower courts “in order to keep them in touch with the people.”

“The practice of recusing yourself when it involves a decision that you earlier made has been unevenly applied,” Mr. Presser said. “I think sometimes they did and sometimes they didn’t.”

Mr. Lazarus said the issue is whether a justice decides it would be a blunt conflict of interest to preside over a case. He said Justice Antonin Scalia decided that a friendship with Vice President Dick Cheney didn’t prevent him from ruling in a case involving Mr. Cheney.

Mr. Lazarus said Chief Justice Roberts likely will stay out of the Hamdan case to avoid the appearance of conflict.

“Remember that Judge Roberts is feeling his way with a set of new colleagues. At a minimum, it would be controversial for him to sit on this,” Mr. Lazarus said. “It’s pretty much a foregone conclusion that no justice would want to sit in review of his own previous decision, given that they’re supposed to be coming to each of these cases with an open mind.”

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