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The first week of Chief Justice John Roberts Jr.‘s tenure on the Supreme Court was going along unremarkably until the final argument was called on Wednesday, Oct. 5: Schaffer v. Weast, a dispute over special education law that originated in Montgomery County, Md. Suddenly, Roberts got up and left the bench, a signal that he was recusing himself from the case. Following the traditional, if mystifying, practice of his new Court, Roberts declined to say why. Roberts lives in Montgomery County, but the buzz was that he bowed out because longtime Hogan & Hartson colleague Gregory Garre was arguing the case on behalf of school Superintendent Jerry Weast. Less clear is whether the recusal was caused by Garre personally, or by the firm generally. The distinction is key, because, as expected, Garre left Hogan the day after the argument to become deputy solicitor general — a degree of separation that might cure the recusal issue. But maybe not. No matter where he works, the fact remains that Garre was Roberts’ longtime prot�g�, helping with many cases Roberts argued before Roberts left Hogan for the U.S. Court of Appeals for the D.C. Circuit in 2003. As deputy SG, Garre will argue five or more cases per term, and the government will not want to lose Roberts’ vote. If Roberts recused because of ties with the firm, that could affect Hogan, which boasts about the Roberts connection on its Web site. Potential clients may be wary of hiring a firm that will scare off a vote (though other clients might actually come to Hogan hoping to bump Roberts off). There’s precedent for concern: David Tatel, a Hogan partner until he joined the D.C. Circuit in 1994, recused in Hogan cases for years. The dynamic is different at the Supreme Court; since no one can fill in for a justice, the imperative to sit is strong. Either way, Hogan Chairman J. Warren Gorrell Jr. said Friday, “I’m not concerned. We have one of the best Supreme Court practices around, and we’re very excited about it.”
Tony Mauro can be contacted at [email protected].

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