John Roberts' ethical standards is a an important question to be explored by the Senate. Roberts chose to participate in a case involving the critical interests of President Bush while
he was being interviewed for a potential SCOTUS appointment. Judges are required to avoid
appearances of impropriety:
Canon 2A. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. . . . Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. . . . The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.
Did Judge Roberts violate this provision? Consider this comment from categorically imperative:
In case anyone from the previous thread still doubts whether Roberts crossed the "appearance of impropriety" line set by 28 USC 455(a), please check out this review of case law on recusal.
Specific attention should be paid to United States v. Tucker, in which the 8th Circuit held that a federal district judge should have recused himself because, although he didn't know the defendant (Jim Guy Tucker), the judge did know President and Mrs. Clinton (and had even [gasp!] once spent a night at the White House). The court justified its friend of a friend recusal theory based primarily on the "high profile" of the case (part of the Ken Starr web) and the Clintons themselves.
Even more relevant is In re Continental Airlines, 901 F.2d 1259 (5th Cir. 1990), in which the 5th Circuit held that a district judge had crossed the appearance of impropriety line by ruling on a case involving a law firm that was considering making the judge an offer of employment. Significantly, the judge was unaware that he was under such consideration until after he issued a decision. Nevertheless, the 5th Circuit held that the judge had an obligation "to take the steps necessary to maintain public confidence in the judiciary." Specifically, the judge should have either 1) rejected the law firm's offer of employment or 2) "if he seriously desired to consider excepting the offer, stood recused and vacated the rulings made shortly before the offer was made."
Further consider, as kossack eafredel pointed out to me, then-Judge Ginsburg's recusal in FEC v. NRA Political Victory Fund, 6 F.3rd 821 (D.C. Cir. 1993), in a case involving the scope of Presidential power, that was argued before her (February 1, 1993) PRIOR to her being nominated to the SCOTUS (timeline - "Ruth Bader Ginsburg filled the vacancy created by Byron White's retirement. The court term ended on June 28, 1993. White had announced his plans to retire on March 19, and President Clinton nominated Ginsburg on June 14. Her first confirmation hearing was July 20, and the Senate confirmed her on Aug. 3."):
Former Circuit Judge Ruth B. Ginsburg, now an Associate Justice of the Supreme Court of the United States, was a member of the panel when the case was argued but did not participate in this opinion.
Roberts clearly did not follow Ginsburg's precedent. His ethical standards fell well short of hers. Not a surprise I know.