U.S. Congress Focuses on Judicial Recusal Duty

Congress Set to Take Aim at Judicial Recusals
House Judiciary Committee's interest marks the first time Congress has flirted with recusal guidelines since a 2004 scrap between congressional Democrats and Justice Scalia
The National Law Journal by David Ingram - November 2, 2009

Congress is preparing to wade into one of the most sensitive of issues for the federal judiciary: when a judge should step aside in a case and who should make that decision.

The House Judiciary Committee, led by Rep. John Conyers, D-Mich., is planning a hearing on federal recusal guidelines amid controversies that have swept through state court systems in recent years, culminating in a U.S. Supreme Court decision five months ago that tightened the recusal requirements for elected state judges. The Judiciary Committee's interest marks the first time Congress has flirted with recusal guidelines since a high-profile scrap in 2004 between congressional Democrats and Justice Antonin Scalia. In a debate that broke along partisan lines, Democrats said that Scalia should have recused in a case involving then-Vice President Dick Cheney because he and Cheney were part of a group that went duck hunting in Louisiana while the case was pending. Nonprofits seeking records from Cheney's energy task force eventually lost, 7-2. Under the current system, federal judges get to decide on their own whether to disqualify themselves from cases. Among the proposals being discussed are requiring a second judge to rule on a recusal motion -- rather than leaving the motion to the "targeted" judge -- and making substitution automatic if any party to a case swears an affidavit alleging prejudice. Some lawmakers, including Conyers, have also said in the past that they want a system to review recusal decisions by U.S. Supreme Court justices. In interviews last week, several federal judges raised concerns about how a new system would work and whether there are any problems now that need addressing. "We're very sensitive to the whole area and have tried to address it," said Judge J. Harvey Wilkinson III of the 4th U.S. Circuit Court of Appeals. A former chief judge, Wilkinson said he had no opinion yet on possible changes but would watch the issue closely.

WHEN TO STEP ASIDE

Federal law, judicial canons and advisory opinions from the Judicial Conference all guide the recusal process. Court computers, for example, are programmed not to assign a case to a judge who owns stock in one of the parties. In general, judges must also recuse if they've worked on the case in the past as a lawyer or if a close relative is involved. But the decision can become much more complicated, especially after a motion that a judge's impartiality "might reasonably be questioned." In 1992, television companies sought the disqualification of Judge Richard Posner of the 7th Circuit in a case involving Federal Communications Commission rules about financial interest and syndication. The companies cited the fact that, while a law professor 15 years earlier, Posner gave expert testimony on behalf of CBS. Parties submitted briefs, and Posner issued an usual 2,800-word defense of his decision to remain on the case. A petition to review his decision en banc failed. The latest congressional attention was sparked by Caperton v. A.T. Massey Coal Co. In Caperton, West Virginia, Chief Justice Brent Benjamin refused to step aside even though a major campaign contributor to the judge's election campaign was the chief executive of A.T. Massey. In June, the Supreme Court, in a 5-4 decision, found that the U.S. Constitution's due process clause required Benjamin's recusal. Even though federal judges are appointed by the president, those pushing for changes said cases like Caperton threaten the public's confidence in the entire judiciary. "These big recusal cases serve as exclamation points for the idea that judges are people, too," said Charles Geyh, a professor at Indiana University Maurer School of Law -- Bloomington who directed a recent American Bar Association study on recusals. Geyh was scheduled to testify before the House Judiciary Committee on Oct. 20 about recusals, but the hearing is being rescheduled. One senior Democratic aide to the House Judiciary Committee said the lawmakers want to examine "whether there is a need to change several substantive and procedural aspects of federal judicial recusal laws so as to promote greater transparency to the public and within the judicial branch." The aide was not authorized to speak on the record and requested anonymity to discuss the committee's plans. The time is right, Geyh argues, to think about changes. Nineteen states allow litigants to disqualify a judge without even having to state a reason. Eight states require that a second judge be the one to rule on a disqualification motion. "There's something weirdly paradoxical that a judge gets to rule on whether he's too partial to rule in a case," Geyh said. "If it becomes a contested matter, why not transfer it to another judge and increase the confidence level in the process?" Those who favor an overhaul of the recusal process claim overwhelming public support. Justice at Stake, a D.C. nonprofit that advocates for judicial independence, released a poll this year in which 81 percent of respondents said that judges should not decide motions asking them to step aside.

MORE JUDGE-SHOPPING?

Finding support among judges isn't so easy. "I think, by and large, our system works fairly well," said Judge Reggie Walton of the U.S. District Court for the District of Columbia. Asked about a system where a judge automatically steps aside when asked, Walton said it could leave the door open to abuse by overzealous litigants looking for an extra advantage. "That becomes particularly problematic, because you don't want parties to judge-shop," he said. According a 2008 ABA report on recusals, states that have an automatic recusal system use a variety of methods to deter judge-shopping. Alaska and South Dakota require parties to swear affidavits alleging bias. Other states limit challenges to one per side, while Montana permits sanctions against lawyers who file improper disqualification motions. Chief Judge Edith Jones of the 5th U.S. Circuit Court of Appeals said moving the recusal decision to another judge will only waste time because such decisions are already reviewable by higher courts. "I really think this is a solution in search of a problem. There are other problems that the judiciary has that Congress may want to take a look at, such as the cost and delays in litigation," Jones said. In recent years, judges have resisted legislative mandates about how the federal court system operates. They beat back a proposal by Rep. Jim Sensenbrenner, R-Wis., to create an inspector general for the judiciary. And, after Scalia's decision not to recuse in the Cheney case, then-Chief Justice William Rehnquist rejected a request from Conyers and Rep. Henry Waxman, D-Calif., to set up a system to review justices' recusal decisions. In a letter to two senators, Rehnquist also wrote that questions about Scalia's reasoning were "ill considered." Still, congressional inquiries sometimes prompt action within the judiciary. In March, the Judicial Conference adopted revisions to its ethics code, in the latest response to recommendations from a committee led by Justice Stephen Breyer. The committee was set up in response to pressure from Capitol Hill.

'DEAD LETTER' LAW

The federal law setting out a standard for when a judge must recuse has remained largely the same since 1974, when it was modeled on an ABA proposal. A separate law that dates to 1949 says that a judge "shall proceed no further" in a case if a party files an affidavit alleging bias. But that's not how the system works in practice, and Geyh said the judiciary has found enough ways around the law that it's a "dead letter." "You have statutes that set forth general standards. ... The question for Congress is: Do they think the courts have done a bad job interpreting them?" said Mayer Brown partner Andrew Frey, who represented A.T. Massey in the Caperton case. Other procedural questions linger for Congress and the courts. If a federal judge refuses to step aside, should the standard on appeal be whether he abused his discretion, as it is in 28 states, or should it be lower? And should judges be encouraged, after ruling, to make a greater effort to explain their reasoning? Any changes within the judiciary would go through the Judicial Conference's Committee on Codes of Conduct. Its chairwoman is Judge M. Margaret McKeown of the 9th Circuit, and she was scheduled to testify before Congress on the issue. McKeown declined an interview request. In a statement, she noted that the Committee on Codes of Conduct "provides ethics advice and training that includes issuance of more than 100 advisory opinions annually and response to nearly 1,000 informal requests for ethics advice." James Sample, an associate professor at Hofstra University School of Law and a recusal expert, said the Caperton ruling is giving momentum to those who want to see more. The case, he said, "provides a compelling narrative of the risks that are posed when fairness -- or the perception of fairness -- suffers, whatever the source of the perceived unfairness may be. And Congress certainly has an interest in that."