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Friday, April 29, 2011

Judicial recusal in constitutional cases

I want to flesh out something that came up in the comments to my post on the argument that Judge Walker should have recused himself or at least disclosed his relationship status in the Prop 8 case. The argument, in essence, is that as a gay man in a relationship who might want to marry his partner, Walker stood to directly benefit from his decision. Now, as I argued, I think the argument fails on its own weight. But it also has wider implications than just gay marriagen, because we could think of any number of cases in which a judge would gain just as great a civil benefit as Judge Walker would from the marriage decision.

In fact, it seems to me that we every jduge benefits from every decision in constitutional (or to go broader, "public law") cases. Judges remain members of civil society; they therefore benefit from virtually any decision elaborating on the scope of constitutional rights (especially if the decision expands those rights), at least to the same extent as any other member of that society. And this may be especially true for district court judges, who are more likely to remain a part of their local communities. So perhaps our understanding of recusal/disclsoure rules must be different in such cases, because we could imagine many cases triggering ths same arguments that the Prop 8 intervenors have raised, extending well beyond the Equal Protection arena. I would like to hear from those who know something about judicial ethics--would we require recusal or disclosure in any of these cases? And should we?

I suggested two examples in the comments to my initial post. One is a judge hearing an obscenity case who enjoys non-obscene pornography--although, as Orin pointed out, Judge Kozinski actually did recuse from an obscenity case after he posted sexually oriented materials to a web site, although that may be a unique example or it just may be Judge Kozinski. A second would be a judge who sends her children to parochial school hearing a case involving vouchers (not involving the school to which she sends her child)--a decision upholding the voucher program may mean it will be cheaper for her to send her children to school.

Let me try a third: Imagine a district judge invalidating a system of DUI checkpoints established by the municipality in which she lives and works. At a minimum, that judge benefits from her decision in that she will not be burdened by having to pass through the checkpoints. But she also may benefit from it in that, if she ever does drive after drinking, she has less chance of being caught. And even more so (to take it to the real extreme) if the judge has a drinking problem and is, in theory, more likely to drive under the influence. I assume we would not require this judge to recuse or to disclose: 1) I live/work/drive in this city or 2) I go out to drink at bars and restaurants and parties sometimes and I drive home.

Or another example: The question of data mining of medical information and whether states can regulate the practice, on which SCOTUS heard oral argument this week. A judge  who upholds the state regulations on data mining in this case upholds a right of informational privacy--and may benefit from that decision, in that her medical records now will be protected against unconsented-to disclosure.

One might argue that the benefit in all of these cases is less direct and immediate than the benefit Walker might obtain as a gay man wanting to get married. But I would argue that the real difference is that the class of people who benefit from these decisions is much larger; more people will benefit from a right to information privacy in medical data or a right to drive the streets without worrying about random checkpoints than will benefit from the right to marry someone of the same sex. But that does not change the point that the judge benefits from her constitutional decisions simply by being a member of civil society who enjoys constitutional rights. That benefit is unavoidable. We either accept it as part of our understanding of the system or we will lose a lot of constitutional litigation and judicial review.

Posted by Howard Wasserman on April 29, 2011 at 08:51 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


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The Walker argument is bogus, in my view. However, trying to pin down the rule is hard, and any rule that clears Walker is likely to clear other situations that many people instinctively find to be violations.

One issue, implicit or explicit, is the "percent of population" game. Any time the issue affects half the world or more, no one is going to have a problem. Courts have struck down taxes on cellphone bills; I bet they all had phones, and had a -- gasp -- direct financial gain. But if it were a tax on some rare item, like luxury boats over 70 feet, and a judge on the panel owned one, someone might howl. Her interest seems more "focused" than the diffuse one that we "all" have as cellphone users. That might be so even if the dollar value is low; it's the "link" that seems tighter.

Second issue is the amount of the benefit/harm. Should not matter, in the sense that one share of stock puts a judge out of a case, but I think some people still respond to amount.

Third issue, in some cases, is the likelihood of invoking the benefit/harm at issue. For example, in the similar demographic cases of black judges hearing discrimination cases, there's a difference between Title VII employment cases and the country club example in the previous comment. Title VII is not a problem: the judge most likely won't seek another job; he's got life tenure in a good gig. Any complaint would be blatant appeals to biased sympathy, not a true "you could gain from your ruling" concern. The country club one comes closer.

Fourth issue is the choice involved versus immutable status. Just don't buy the boat, and you're not knocked off the boat cases. But "don't be black"?? Also, the racial objection smells, even in the rare "you could benefit" case, because the effect of disqualification seems racist itself, or at a minimum, is stacking the deck. No one cares if "the rest of us" decide boat-owning issues without the owners in the decision group; they participate through advocacy. But having white guys decide "about" women and African-Americans sets up an offensive subject-object relationship. It's also asymmetric, because why should a bunch of white guys get to hear race/gender cases, if they are "affected" too, by civil rights laws, and can restrict them to keep the goodies for themselves? Plus, the laws in question allow them to be plaintiffs, too. And who could hear the affirmative action cases (like Bollinger) that openly pit groups against each other for the seats in school? That last one merges this "immutable" issue with the "focused subset of population" issue, if you see the white interest as more diffuse (like cellphone users) and the black interest as "focused."

Taking all those together, the objectors plainly recognize that the per-se "he's gay!" objection stinks under #4, so they're trying to hit the other points. He's likely to engage in the transaction (like boat buying) of marriage, and he's part of a small percentage of more-linked people, etc.

If you don't look at issue 4, and try to look at just 1-3, then it is admittedly hard to narrow down a rule that absolves Walker here and does not absolve other narrow, self-interest concerns.

These same rules also come into play with legislators. Millionaire senators approve tax cuts for the rich, and that's themselves. But all laws affect them as citizens. If a legislator votes on a tax cut or regulatory benefit for his narrow profession -- peanut subsidies if he's also a peanut farmer, chiropractic regulations if she's also a chiropracter -- and bad press is likely. But if it's a law affecting lawyers, it won't get the same, because half the legislators are lawyers, even if they are only 1% of the general population.

Finally, I note that while I defend Walker, a political even-handedness nudges me to mention that the attacks on Clarence and Ginny Thomas include some of the same laughable reasoning. I keep hearing that he was unethical in not recusing in the Citizens United case, because her non-profit political advocacy group would "benefit from the ruling" allowing such groups to advertise. So? There are thousands of similar groups out there. If a business case affects "all corporations," does that mean any justice or judge is in trouble if his/her spouse has a corporation? The flag-burning case allows Mrs. Scalia to burn a flag - horrors! I don't see any narrow, focused linkage just because the subset is "all non-profit groups." That's the ACLU, too, and would get back into the issues with Judge Reinhardt and his ACLU-manager wife. Would he recuse from a Citizens United clone, on that basis? Heck no, and he shouldn't.

Bottom line: it's the immutable characteristic argument that is key, because most of the other factors would otherwise be in play here, and it's amazing how often those factors are used implicitly without breaking it down.

Posted by: cynic | May 3, 2011 6:46:50 PM

We all have some sort of bias, not necessarily in the ugly sense of the word. The hermeneutic circle thought process, knowingly or not, helps many of us determine whether our biases may interfere with decisions we have to make. Perhaps many judges use this method to determine whether or not not recusal is appropriate. Many cases may not have a bright line, in which case a judge still has to consider the potential impact of the appearance of bias, even if the judge is confident that any of his/her biases would not interfere with an objective decision.

Posted by: Shag from Brookline | May 2, 2011 6:42:36 AM

I am not a legal ethicist, but my distinct impression is that the recusal "rules" do not have the resources to say that recusal is either "required" or not "required" in this situation. There of course remains a broader question, closer perhaps to the heart of Howard's question, of whether a reasonable and conscientious judge "should" recuse here. As to that question, I would think it relevant that it is morally intolerable (or at least reasonable to believe it morally intolerable) to require a judge to recuse from a case for no other reason than that s/he is gay and in a committed relationship. This--not the rules per se--is the reason the analogy to black judges during Jim Crow is apropos.

Posted by: Jamal Greene | May 1, 2011 8:22:09 AM

The motion is arbitrary in my opinion. It tries to be reasonable by suggesting they aren't targeting gays. No.

The appearance of bias arises from "extraordinary" (says who? e.g., a 5-4 ruling overturning him is an example given; another is him showing a clip along with others in a demonstration -- a demonstration not just about gay subjects) rulings by someone who did not emphatically deny that he planned to marry his partner.

It is unclear to me why only those who failed to do this would be bias or appear to be biased. What if his sister was planning to be married to a woman? What if he was just in a long term relationship? Sure, he doesn't think he wants to be married, but you know, come on. It's possible. And, the case is a core issue for gays as a whole. Are you telling me some don't think him being gay in itself doesn't provide an appearance of impropriety?

And, as others note, a straight person (married or planning to be) can be biased too, since the law favors them. The true "biased" class is too big to avoid. It is much more than belonging to a club or owning stock or having a close relative involved in the firm. It hits to a very large class of people and the attempt to narrow it comes off as false.

Posted by: Joe | Apr 29, 2011 10:39:07 PM

TJ: I agree with you that a case affecting judges qua judges should require recusal, unless you run into a rule of necessity, as in the judicial pay cases. The cases I have in mind (and the Prop 8 case is an example) are those in which judges are affected not because they are judges, but because they are members of civil society who enjoy constitutional rights and liberties to the same extent as all other members of that society.

Posted by: Howard Wasserman | Apr 29, 2011 9:47:52 PM

Howard, I think descriptively the size of the class matters, and normatively it probably should too. This is easiest to see when the class is so large that it encompasses everybody, or every judge, just about equally. So a judge is not required to recuse in the case on judicial pay (Beers v US), even though there is a direct financial interest, since there are no other judges available. But if it only implicated some subset of judges (e.g. the chief judge of every district and circuit and the Chief Justice) then I think it pretty clear that those judges would have to recuse, at least under the current rules. This is not the only area of the law where the line drawing is inherently messy, and is badly done (though everybody disagrees on how to improve it), but in my view badly done is still better than not done at all.

Posted by: TJ | Apr 29, 2011 9:12:27 PM

I think that applying the judicial canons to the situation is largely folly, as is trying to draw some arbitrary bright-line. As it pertains to constitutional questions, no citizen (or non-citizen for that matter) is disinterested, to say nothing of a judge whose job requires interpreting the law consistently with the Constitution (or constitution, for a state court judge) on a daily basis. A heterosexual judge who buys into the notion that homosexual marriage devalues heterosexual marriage (ignoring the professional duty of judges to avoid discriminatory behavior in all walks of life) is just as interested in the outcome of the Prop 8 challenge as a homosexual judge. Even if they are not prejudiced by their personal opinions, heterosexual judges are directly interested in the possibility that the group of marriageable people could get larger: the cost of family-oriented subsidy would rise and the likelihood that they might be rolled back or be more difficult to enlarge increases by legalizing homosexual marriage. Failing that, everyone has an interest in what rights everyone else has, regardless of that interest's attenuation. Notwithstanding the individuality of rights, our rights affect what others are able to do. Disinterest is a foreign concept to the constitutional question.

Posted by: Matt | Apr 29, 2011 6:26:08 PM

I did not know about TJ's example of Shelley; I wonder if that is the normatively right approach. In general, I was speaking normatively because I do not know what the judicial canons say about this.

I am tempted to say recusal never should be required. This partly is because I cannot draw a line among Judge Walker wanting to get married and Judge X wanted to pay less to send her kid to parochial school or Judge Y wanting to be able to drive home without the inconvenience of checkpoints. Other than the size of the respective classes, I just do not see differences among these. I suppose as the class gets smaller and smaller, we get closer to a direct interest. But I have a hard time saying a judge must recuse simply because she benefits (or is harmed) as a member of society.

As I said, this is my temptation. Am I missing some lines?

Posted by: Howard Wasserman | Apr 29, 2011 4:00:53 PM

And also, your response to anon2 is clearly not a description of how recusal current works. There are at least sometimes where a judge is expected to recuse even though he is not a party, simply because he will predictably be affected by the rule that emerges. For example, three justices recused from Shelley v. Kraemer because they owned land subject to restrictive covenants. And I read you to be saying that such recusals should never be required.

Posted by: TJ | Apr 29, 2011 1:52:32 PM

Howard, I agree with you that there is a reductionist problem that a judge will pretty much always "benefit" in some sense from his decision; and we cannot require a judge to always recuse. But there is a flip side, which is that the rule cannot be that the judge should never have to recuse. And by your logic, it seems that is where we end up. After all, what would it take for you to say that Walker should have to recuse? What if he actually intended to get married to his partner? What if he had already booked a wedding venue with a non-refundable deposit?

I want to take out the cheap answer of "financial and other conflicts as provided by the judicial canons" because those canons have to come from some normative premise.

Posted by: TJ | Apr 29, 2011 12:56:19 PM

Anon2: I am not sure I buy the analogy between wanting to join a particular country club and wanting to be enjoy full civil/social/legal equality in a socio-legal institution such as marriage. But even accepting that analogy, in the hypo you suggest recusal may be necessary because the judge has a direct interest as to one of the parties. But it would be a different case if a black judge would be able to join Club X (a non-party) through its ruling in the case involving Club Y. To require recusal there would be to say that a member of a group cannot rule in a case where he would benefit as a member of that group.

Posted by: Howard Wasserman | Apr 29, 2011 12:41:48 PM

As I read the recusal motion, Judge Walker's conduct during the trial is a big part of the argument, too. This is the ex post part of the claim; not only was Judge X situated to benefit for ruling Y, but Judge X conducted himself during the case in a way that strongly suggests a particular goal beyond just deciding the case under the law. I have no idea how that fits into the recusal standard, or how it should fit into hypos, though. Does anyone know?

Posted by: Orin Kerr | Apr 29, 2011 12:06:10 PM

Many people have responded to the Walker situation by saying his opponents' argument is akin to claiming that a black judge cannot decide an anti-discrimination case. I think we would all agree that a black judge can rule that a racist anti-black law is unconstitutional, but what about the situation where the judge is being asked to decide a civil suit against a country club for discriminatory admission policies where that judge himself personally desires to be admitted to that club? Does that change things?

Posted by: Anon2 | Apr 29, 2011 11:50:18 AM

Here's some succinct comments from Richard Painter at the Legal Ethics Forum not long ago: http://www.legalethicsforum.com/blog/2011/04/it-is-bias-against-judge-walker-not-bias-of-judge-walker-that-is-at-issue-here.html

Posted by: Patrick S. O'Donnell | Apr 29, 2011 10:39:03 AM

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