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Judge John Roberts Jr. is bowing out of a high-stakes federal appeals court case involving the American Bar Association. The Supreme Court nominee last week recused himself from the case, in which the ABA is a party, months after he heard oral arguments in the matter. No reason was given for the recusal, but the ABA has long evaluated the qualifications of Supreme Court nominees and has yet to render a decision on Roberts. The Senate historically has considered the ABA’s views in confirming judicial candidates. The U.S. Court of Appeals for the D.C. Circuit, where Roberts now sits, issued a brief order announcing the recusal on Aug. 9. The court, Roberts, and the White House all would not comment on why Roberts stepped away from the case. The case could have an impact on the way law firms do business. The suit was brought by the ABA and the New York State Bar Association against the Federal Trade Commission. The bar associations say that the federal government has no right to hold lawyers to certain privacy provisions in the 1999 Gramm-Leach-Bliley Act, which was designed to protect consumers’ personal financial information and aimed largely at the financial services industry. Roberts’ choice to leave the case, at a time when his every move is being scrutinized, may be an exercise in extreme caution, some legal experts say. “He might have been concerned about the appearance of quid pro quo�that a certain ruling was to thank them for their ranking,” says Monroe Freedman, a specialist in legal ethics and a professor and former dean at Hofstra University School of Law. An ABA committee made up of 15 lawyers, chaired by Thomas Hayward Jr., a real estate lawyer in Chicago, hasn’t yet issued its opinion on Roberts, but says it will do so before the Senate opens Roberts’ confirmation hearings, expected to begin Sept. 6. The ABA declined to comment because its lawsuit is pending. The association gave Roberts a well-qualified rating�its highest�when he was nominated to the D.C. Circuit in 2001. For the ABA and the White House, the ratings have immediate significance. The association was addressed last week by Attorney General Alberto Gonzales, who was instrumental in displacing the association from its traditional role in vetting White House judicial nominees. But Gonzales told the ABA at its annual conference on Aug. 8 that he “looked forward to a good and fair examination of Roberts’ qualifications.” Four years ago, in a letter to then-ABA President Martha Barnett, Gonzales, then-White House counsel, wrote that it was “particularly inappropriate to grant a preferential, quasi-official role to a group, such as the ABA, that takes public positions on divisive political, legal, and social issues that come before the courts.” Both Hofstra’s Freedman and Steven Lubet, a legal ethics expert at Northwestern University School of Law, say that Roberts’ recusal is unusual in part because of the rare circumstances in which a judge nominated to a higher court is asked to hear a case involving a group that is evaluating his professional credentials. Lubet says if Roberts is confirmed to the high court, he could alter the way the Court views recusals, because he is holding himself to what appears to be a particularly rigorous standard. It is within the discretion of all federal court judges to decide whether to sit out a case because of a connection to the parties. Last year, Supreme Court Justice Antonin Scalia famously refused to recuse himself from hearing a case against Vice President Dick Cheney regarding the energy task force that he led after it was discovered that Scalia had a short time before taken a duck-hunting trip with Cheney. “The Supreme Court recusal process needs more attention. It demonstrates at a minimum that Roberts is willing to think hard about it,” Lubet says. “It would be a great contribution if Judge Roberts were to raise those concerns internally.” Roberts’ recusal could also have practical implications for the ABA’s suit. He was part of the three-judge panel that heard oral arguments in May. Lawyers are for the most part licensed and regulated by state bar associations. The groups challenging the FTC’s application of the Gramm-Leach-Bliley privacy provisions to lawyers argue that existing state laws governing confidentiality are adequate. If the government wins the case, lawyers who give any kind of financial advice, in addition to providing reassurances of attorney-client privilege, would be required to notify clients that they won’t market or sell private data about them to other companies. Some firms say the rules, which the FTC agreed not to enforce until the litigation ends, would be cumbersome and confusing to clients. Because of Roberts’ record of championing states’ rights and a limited role for the federal government in regulatory matters, the lawyers groups believed Roberts would look favorably on the ABA’s arguments. “We thought we had a very strong panel of judges who would potentially be receptive to our argument,” says Steven Krane, a partner with Proskauer Rose in New York who argued the case for the New York Bar Association in the D.C. Circuit. Krane says the recusal was “appropriate.” The case could be reargued if a third judge is added, or the two remaining judges, Chief Judge Douglas Ginsburg and Judge David Sentelle, both GOP appointees, could issue a decision on their own. They might also opt to bring in a third judge to read the briefs and weigh in, without hearing arguments again.
Lily Henning can be contacted at [email protected].

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