If she is confirmed, Judge Ketanji Brown Jackson will recuse herself from a lawsuit accusing Harvard of discrimination against Asian applicants that the Supreme Court will hear this fall.
The judge revealed her plans in an exchange Wednesday afternoon with Sen. Ted Cruz (R., Texas) during her confirmation hearings. Jackson sits on Harvard's Board of Overseers, one of the university's two governing boards, which triggered speculation about her connection to the case as soon as she was nominated.
The lawsuit broadly accuses Harvard of discriminating against Asians and racially balancing each admitted class. It also urges the Court to overturn precedents that authorized race-conscious admissions. The Harvard case is bundled with a similar case involving the University of North Carolina. If the disputes are disaggregated, Jackson may be able to participate in the UNC case.
There was some question before the hearing whether Jackson would stake a position on recusal. In the past, nominees have declined to make recusal commitments in advance, promising only to follow ethics guidelines in good faith.
Recusals at the Supreme Court are rare and most common in cases involving a relative or a direct financial conflict. They're also undesirable. Disqualifying oneself leaves the Court with an even number of justices. If the Court deadlocks in deliberations, the decision of the court below is automatically affirmed and no controlling opinion issues. While substitute judges can sit in case of recusal on the lower courts, there are no stand-ins at the High Court.
Lawyers have debated whether Jackson is obligated to recuse. It's not clear that the overseers play any role in admissions policy. However, she moderated a panel in the fall on advancing racial diversity at Harvard that included the university's president Lawrence Bacow.
Some pushed for her recusal based on an ethics rule requiring disqualification when a judge's "impartiality might reasonably be questioned." That standard can be a fuzzy one and is often invoked by partisans making longshot recusal arguments.
Though Congress has written ethics rules for federal judges, they are not binding on the Supreme Court. Some believe Congress cannot constitutionally pass an ethics code binding the justices.
Jackson will answer questions from lawmakers on the Senate Judiciary Committee through Wednesday night.