Recusal Issue Problematic for Gonzales as a Justice

Rhett Pardon
WASHINGTON — If Attorney General Alberto Gonzales is nominated and confirmed as a U.S. Supreme Court justice, it raises the likelihood that the court would deadlock 4-4 on a variety of issues that conservatives care most about.

As a justice, Gonzales might have to recuse himself on cases he handled in the White House or at the Justice Department.

Those possible cases at issue could include the Free Speech Coalition’s suit over 18 U.S.C. § 2257, if it ever reaches the U.S. Supreme Court.

Other cases could involve parental notification for abortion, physician-assisted suicide and the clash between universities and military recruiters over the military's policy on homosexuals.

President Bush will announce his nominee for the Supreme Court tonight, the White House said, amid rumors that he has not chosen Gonzales and has settled upon Judge Edith Brown Clement of the 5th U.S. Circuit Court of Appeals.

Federal law requires high court justices to recuse themselves from “any proceeding in which [their] impartiality might reasonably be questioned.” That includes those who “served in governmental employment and in such capacity participated as counsel, advisor or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

M. Edward Whelan, president of the Ethics and Public Policy Center, has been arguing the Gonzales-Supreme Court issue on the blog of the conservative magazine National Review.

“Gonzales may well be required to recuse himself from [the] important cases already on the court's docket for next term,” Whelan wrote.

Wendy Long, chief counsel to the Judicial Confirmation Network, another conservative group advocating the selection of conservative judges, wrote in a statement that “it's a legitimate factor that would have to be weighed by any president elevating an attorney general who might sit on a court reviewing litigation in which the administration had taken a position, particularly if the recusal would cause a 4-4 split on the court.”

Recently, the conservative-advocate group Concerned Women for America circulated a memo listing six cases on which it fears Gonzales would have to recuse himself were he named to the Supreme Court.

“It's nothing personal, and we haven't expressed a position on him,” Jan LaRue, the organization's chief counsel, wrote in the memo. “My point has been all along that I don't really expect the president to nominate [Gonzales] because of the issues described in the memo.”

In its case representing the adult business community, the FSC is seeking to make permanent a temporary injunction on 2257 federal record-keeping and labeling requirements for the adult industry that went into effect in late June.

The expanded regulations of 2257 are certain to put a crimp in business practices for adult websites, producers, retailers, novelty makers and web-based and traditional mail order companies.

New regulations require producers to keep detailed information to verify the identity and age of their performers, including date of birth, legal name and a copy of a photo identification card.

The new rules apply to adult material dating to July 3, 1995. Violators face up to five years in prison for a first offense and 10 years for subsequent violations.

The next scheduled in that case is set for Aug. 1-2 in U.S. District Court in Denver.