Harvard’s Lawyers Should Demand Kavanaugh’s Recusal

“What goes around comes around.”

These were the words of now Supreme Court Justice Brett M. Kavanaugh during the opening statement at his confirmation hearing. In those unprecedentedly partisan and hostile remarks, Kavanaugh railed against his political enemies, including “the Clintons” and unspecified “left-wing opposition groups.” The display was alarming to legal scholars who felt the threats undermined not only Kavanaugh’s credibility, but the legitimacy of the Court itself.

Earlier this week, the Supreme Court announced it would hear a challenge to Harvard University’s race-conscious admissions policy. As University President Lawrence S. Bacow wrote in a statement responding to the news, “The Supreme Court decision to review the unanimous decisions of the lower federal courts puts at risk 40 years of legal precedent granting colleges and universities the freedom and flexibility to create diverse campus communities.”

Bacow is right to worry. Given that every lower court found Harvard’s admissions policy to be within the bounds of Supreme Court precedent, the fact that the justices are now taking up the matter suggests the conservative majority may plan to upend the law. Moreover, perhaps the University should be worried given Kavanaugh’s penchant for revenge.

Harvard, through its law school, was Kavanaugh’s former employer. Prior to his nomination, he taught at Harvard Law School for nearly a decade. Yet, in the wake of several credible, high-profile, accusations against Kavanaugh for sexual assault, the Harvard community might have given the justice a reason to exact his publicly promised retribution.

Law students, alumni, and undergraduates rallied to demand that Harvard part ways with the scandal-plagued Trump nominee, who, to this day, maintains his innocence. In the fall of 2018, over 1,000 Harvard Law School graduates signed an open letter to the Law School Dean John F. Manning ’82 asking “that the Law School rescind Judge Brett M. Kavanaugh’s appointment as the Samuel Williston Lecturer on Law, and that he not be allowed to teach on the January 2019 Winter Term.” Six out of seven then-current Harvard Law School student sections sent their own letters, demanding a Harvard-led investigation into then-faculty member Kavanaugh. “Allowing a person credibly accused of sexual assault to teach students prior to a full investigation surely creates a hostile environment for many students, and especially survivors,” read one letter.

Then came the carefully worded announcement from Associate Dean and Dean for Academic and Faculty Affairs Catherine Claypoole: “Judge Kavanaugh indicated that he can no longer commit to teaching his course in January Term 2019, so the course will not be offered.” (The president to whom Kavanaugh owes his appointment is famous for putting it another way).

While it all worked out for Kavanaugh, as things tend to for his ilk, at the time of Harvard’s decision his future was uncertain. Harvard’s announcement came on Oct. 1, 2018. Kavanaugh was confirmed later that same week by one of the slimmest margins in history.

Just days before the U.S. Senate decided whether Kavanaugh would go down as yet another accused predator turned SNL punchline or be confirmed to a lifetime appointment on the nation’s highest court, the preeminent law school in the country seemingly weighed in. No doubt, the justice who promised “consequences” remembers.

Harvard’s lawyers should request Kavanaugh’s recusal from the admissions case. In fact, 28 U.S. Code § 455 on the disqualification of a judge requires that a judge or justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Though there is debate over which rules of ethics bind Supreme Court justices, recusal is far from uncommon. The nine justices recused a total of 145 times over the 2019 term. Some may note that four other justices have connections to the Law School — Chief Justice John Roberts, Justice Stephen Breyer, Justice Neil Gorsuch, and Justice Elena Kagan each attended, and Kagan later served as dean. Yet none of these jurists publicly named their enemies and promised vengeance before the nation. Moreover, none were so publicly rebuked by the Harvard community at-large.

Of course, there are strategic reasons to favor Kavanaugh’s recusal. Harvard students and students across the country are relying on the University to win this case; without Kavanaugh, the Supreme Court’s current 6-to-3 conservative-to-liberal supermajority slims to 5-to-3. But it is primarily for ethical reasons — not tactical ones — that we should publicly demand Kavanugh’s recusal. A vendetta-riddled justice should not decide a case about a policy that defines the diverse and vibrant Harvard community when that very community rejected him just years ago.

Kaivan K. Shroff is a fourth-year joint-degree student at the Harvard Kennedy School and Harvard Law School.