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With a single sentence, two judges on the U.S. Court of Appeals for the D.C. Circuit last week brushed aside a sticky ethics question that had plagued their former colleague, Chief Justice John Roberts Jr. Judge A. Raymond Randolph and Senior Judge Stephen Williams refused to consider a request that the D.C. Circuit void an earlier ruling which upheld the Bush administration’s authority to try terrorism suspects in military tribunals. In an unusual motion filed while Roberts was still on the circuit court, terror suspect Rami Bin Saad Al-Oteibi attempted to intervene in Hamdan v. Rumsfeld, requesting that Roberts disqualify himself from the case and that the court reconsider its July 15 ruling in favor of the government. Al-Oteibi’s lawyers — Charles Carpenter and Stephen Truitt at the D.C. office of Pepper Hamilton — argued that Roberts’ interviews at the White House about a nomination to the Court during the time he was considering Salim Ahmed Hamdan’s appeal of Bush administration policies regarding enemy combatants created the appearance of bias. Roberts’ White House meetings became public after he filled out a Senate questionnaire on Aug. 2. The issue also prompted a public debate among law professors. “This is an exceptional case: the whole world is watching to see that the judiciary is independent as advertised,” one of Al-Oteibi’s briefs noted. Lawyers for Hamdan actually opposed Al-Oteibi’s request, claiming the Aug. 26 motion would delay their client’s case. Randolph and Williams, who decided the case with Roberts, didn’t explain their decision, issuing a one-line order on Oct. 11. The new chief justice could again face calls to recuse if the Supreme Court opts to accept Hamdan, a decision the Court has already twice put off, leading to speculation that the justices aren’t likely to take the case. The Court was scheduled to discuss Hamdan’s cert petition again last Friday. Justices usually bow out of cases they’ve heard on a lower court, but there is no rule prohibiting Roberts from participating in Hamdan at the Supreme Court, says Steven Lubet, a professor at Northwestern University School of Law and one of three professors who debated the ethics of whether Roberts should have recused in Hamdan.
Lily Henning can be contacted at [email protected].

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