In April, Judge John Roberts “heard arguments about the Bush administration’s policy [on military commissions in Guantanamo] as he was discussing a Supreme Court appointment in private conversations with the White House.” On July 15, “when Judge Roberts met with President Bush for the job-clinching interview, he joined a ruling in favor of the defendants, who included Mr. Bush.”
In an article that has recieved considerable attention by the media, Stephen Gillers, David J. Luban, and Steven Lubet – three respected legal ethicists – argue that Roberts conduct was unethical. They noted “[f]ederal law deems public trust in the courts so critical that it requires judges to step aside if their ‘impartiality might reasonably be questioned,’ even if the judge is completely impartial as a matter of fact.”
To rebut their claims the papers are quick to turn to another legal scholar, Professor Ronald Rotunda who argues that Roberts did nothing wrong. Here’s what they don’t tell you: until very recently Ronald Rotunda was employed as a military advisor to the Department of Defense on military commissions – the exact subject of the case in controversy.
You can find the information on his public website.
But when the New York Times, Washington Post, Newsday and Fox News reported on Rotunda’s views, they didn’t bother to mention this obvious conflict. (The Wall Street Journal, to their credit, gave it a brief mention this morning.)
Also, when Ronald Rotunda wrote a letter describing his views on Roberts’s conduct to Senator Arlen Specter, he didn’t disclose his connection to the Department of Defense.
It is completely irresponsible for the media to refer to Rotunda as a neutral “legal scholar” in this circumstance. He is as conflicted as Roberts and is in no position to be passing judgment.