As I wrote this weekend, the apparent assignment of the criminal case against Donald Trump to United States District Judge Aileen Cannon bodes very ill for the prosecution.
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assignment → write → prosecution
Judge Cannon’s favorable handling of Trump’s hare-brained attack on the federal investigation of his conduct was seen widely as far outside judicial norms, an observation supported by the blunt language and harsh terms of the 11th Circuit ruling overturning her.
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handling → see → her
Now “recuse! recuse!” falls from nearly every lip, and the disqualification statute governing federal judges is cited, unconvincingly and suspiciously vaguely, like a Canadian girlfriend.
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statute → recuse → girlfriend
My role is that of an emo legal Cassandra, to tell you in vain that recusal law doesn’t do what you want it to do.
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it → tell → what
Your role is probably not to listen to me, possibly noisily.
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role → listen → me
One of us has offended one or more gods; that’s how we get into tsuris like this.
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we → offend → this
Let’s begin with the statute.
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’s → begin → statute
It begins with a broad, rather vague pronouncement:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.1
We’ll get back to that.
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We → begin → that
Suffice it to say it doesn’t mean what you hope it means.
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it → suffice → what
The statute goes on to enumerate various specific circumstances requiring disqualification, for instance:
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
You’re probably saying “wow, that (b)(1) sure seems broad, it covers any time that a judge is biased!”
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judge → go → time
Federal courts have repeatedly interpreted Section 455 narrowly in several crucial ways.
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courts → interpret → ways
They have emphasized that the question of whether a judge is biased must be decided “objectively: “whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge's impartiality.”
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recusal → emphasize → impartiality
But here’s the thing: once again, the plain language reading of this test is not reliable.
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reading → ’ → test
One of the hazards of a black robe is a tendency to think that your views are the (only) objectively reasonable ones.
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views → think → robe
The law on Section 455 reflects a set of judicial norms and values, not necessarily the norms or values of a “lay observer.”
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law → reflect → observer
For instance, you, an unlettered peasant, may believe that it is reasonable to question a federal judge’s impartiality when the president who appointed them is a party to a case.
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who → believe → case
But federal judges think that’s not objectively reasonable to believe, so it’s quite well established that it's not a ground for recusal.
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it → think → recusal
I can certainly see policy reasons that you don’t want to kick judges off cases based on who appointed them, but saying that no objective lay observer would doubt the judge’s impartiality is frankly delusional.
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observer → see → impartiality
What federal judges actually mean by this is “no reasonable person fully immersed in federal judicial history and culture and accepting its norms would doubt this judge’s neutrality.”2
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person → mean → neutrality
It’s deeply unreflective.
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It → ’ → ?
Similarly, you may think that it’s reasonable to question a judge’s impartiality when they make terrible, stupid rulings against one party or for the other, or when they say angry, intolerant stuff about one of the parties.
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they → think → parties
But as federal judges will explain, it’s just not.
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it → explain → ?
Here’s how Justice Scalia explained it more than thirty years ago:
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Scalia → ’ → it
First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.
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rulings → constitute → motion
In and of themselves (i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extrajudicial source is involved.
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source → surround → favoritism
Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.
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judgment → form → favoritism
Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.
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that → disapprove → challenge
They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.
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judgment → do → favoritism
An example of the latter (and perhaps of the former as well) is the statement that was alleged to have been made by the District Judge in Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921), a World War I espionage case against German–American defendants: “One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans” because their “hearts are reeking with disloyalty.”
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hearts → allege → disloyalty
Id., at 28 (internal quotation marks omitted).
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marks → omit → 28
Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display.
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men → establish → judges
A judge's ordinary efforts at courtroom administration—even a stern and short-tempered judge's ordinary efforts at courtroom administration—remain immune.
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efforts → remain → administration
Now every time a lawyer says “almost never”, there’s an inevitable reaction:
But there’s really not.
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lawyer → say → ?
Motions to recuse (which any party to the case can bring) are common.
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party → recuse → case
They are brought by three categories of people: (1) pro se litigants who think any ruling against them is a travesty of justice, (2) dumb lawyers, (3) lawyers who have no client control or who are using the motion as a vehicle for grandstanding.
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who → bring → grandstanding
Motions are almost never — I am tempted to say “functionally never” — granted because of how the judge acted in the case.
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judge → tempt → case
Almost all of the cases finding that disqualification is mandatory involve an “extrajudicial source” — that is, a sign of bias arising outside the judge’s conduct in the case, like evidence that the judge has stock in a company that’s a party, or previously represented a party as a lawyer, or received information about the case through an extrajudicial source.
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that → find → source
A judge’s rulings and behavior are only grounds for recusal when they are “so extreme as to display clear inability to render fair judgment.
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they → display → judgment
It’s difficult to convey to you what a solid wall of precedent there is on this point, and how hopeless a motion to recuse looks to anyone familiar with the law.
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motion → ’ → law
That’s because this belief — that it’s objectively unreasonable to doubt the neutrality of a judge who makes ridiculously partial rulings or says inflammatory things — is immovably ensconced in the judicial mindset but completely ridiculous to most normal people.
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who → ’ → people
…and 30 more, not listed.
