D.C. Circuit Court Judge Ketanji Brown Jackson promised Wednesday to recuse herself from a lawsuit challenging Harvard University’s affirmative action policies if confirmed to the Supreme Court.
The Supreme Court will hear two cases in the fall addressing affirmative action at Harvard and the University of North Carolina. The plaintiffs in the Harvard case allege that the university effectively established a racial quota to limit the number of Asian-American applicants. The university docked Asian-American applicants admissions points in categories like “positive personality,” likability and “widely respected,” the lawsuit alleges. (RELATED: Federal Judge Rules Against Asian Students In Harvard Race-Based Admissions Trial)
“That is my plan,” Jackson said about recusal when asked by Republican Texas Sen. Ted Cruz.
Jackson currently sits on the university’s Board of Overseers. Under the federal judiciary’s rules for recusal, judges must recuse themselves from “any proceeding in which his impartiality might reasonably be questioned,” including when the judge may have “a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”
Cruz, who attended Harvard Law School at the same time as Jackson, staunchly criticized the alleged discrimination during an exchange with Jackson.
Cruz described the school’s affirmative action practices as an “explicit and, in my view, egregious policy of discriminating against Asian-Americans,” before delving into a question about legal rules regarding standing.
“Even though I see that policy is egregious, I as an individual plaintiff could not bring a lawsuit challenging it because I am not Asian-American, is that right?” he asked Jackson, who did not directly answer the question.
“If you brought a lawsuit, the court would have to evaluate whether you had an actual injury in order to be able to determine whether it had subject matter jurisdiction to hear the suit,” she responded.
Jackson’s recusal decision was considered a key issue before her confirmation hearings, with several Republican senators and conservative legal commentators calling for her to make it clear.
“It would be profoundly inappropriate for a jurist to sit on a case for a school in which she has held a governing position and a role in setting institutional policies,” George Washington University law professor Jonathan Turley wrote.
Other Supreme Court justices have recused themselves in the past from proceedings related to schools with which they have connections. Justice Clarence Thomas recused himself from a 1995 case involving the gender integration of Virginia Military Institute because his son attended the school. Justice Amy Coney Barrett pledged during her confirmation hearings to recuse herself from all cases involving her former employer, the University of Notre Dame.
The Supreme Court has upheld affirmative action schemes in the cases Regents of the University of California v. Bakke and Grutter v. Bollinger, although it has found explicit racial quotas to be unconstitutional.