To Disqualify or Not Disqualify, That is the Question

Should a Justice with an established record in favor of affirmative action disqualify himself from participating in a Michigan Supreme Court decision regarding the use of racial preferences in university admissions?

A Justice should not disqualify herself if she has an established record favoring affirmative action. A Justice will have formed opinions on important matters during her career before her appointment to the Court. She would have formed her ideas from her experience as an attorney or a judge in a lower court. There must be trust in the integrity and honesty of the Justices and in their ability to make fair decisions. They earn this trust by their behavior and actions throughout their careers. Without public trust in the integrity of judges, there would be no rule of law. These core democratic values - integrity, honesty, and rule of law - are vital to our nation, where disagreements or conflicts arc resolved by courts fairly and equally under law.

The guiding statute for the disqualification of judges is 28 U.S.C. 455, which states that any justice "shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned." This statute does not say that a judge should disqualify herself if she has an established record or opinion about the legal issues in the case. In the past, Supreme Court Justices have written books about important issues in law early in their career and have not disqualified themselves from cases about those issues. See Laird v. Tatum, 409 U.S. 824,831-32(1972)(memorandum opinion). Justices come to the Supreme Court in middle age and it would be impossible for them to have no opinions about important matters of law. If only judges without opinions sat on cases, the person judging would be inexperienced and ill-suited for interpreting the law. Justice Rehnquist, in his memorandum opinion regarding the case of Laird v. Tatum wrote:

"... neither the oath, the disqualification statute, nor the practice of the former Justices of this Court guarantee a litigant that each judge will start off from dead center in his willingness or ability to reconcile the opposing arguments of counsel with his understanding of the Constitution and the law." Id. at 838-39
Justices should disqualify themselves, however, when they have a financial interest in a case before their court, if they are related to a party in the case, or if an attorney was once their partner.

Everyday, we decide things fairly using prior knowledge and opinions. For example, a teacher who chooses the best essay from his class selects the one that is best written, and not that of a favorite student. A good teacher will judge by the work, rather than by personal opinions about the students. In the same way, we expect a judge to interpret the law fairly and impartially.

A Justice who has expressed opinions about affirmative action should not disqualify herself from a Supreme Court case regarding this issue. Impartiality is not defined clearly by the guiding statute, so it is up to each Justice to interpret this matter on her own.