[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
EXAMINING THE STATE OF JUDICIAL
RECUSALS AFTER CAPERTON v. A.T. MASSEY
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS AND
COMPETITION POLICY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
DECEMBER 10, 2009
__________
Serial No. 111-118
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida STEVE KING, Iowa
STEVE COHEN, Tennessee TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas
Georgia JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico TED POE, Texas
MIKE QUIGLEY, Illinois JASON CHAFFETZ, Utah
JUDY CHU, California TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
Perry Apelbaum, Majority Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on Courts and Competition Policy
HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chairman
JOHN CONYERS, Jr., Michigan HOWARD COBLE, North Carolina
RICK BOUCHER, Virginia JASON CHAFFETZ, Utah
ROBERT WEXLER, Florida BOB GOODLATTE, Virginia
CHARLES A. GONZALEZ, Texas F. JAMES SENSENBRENNER, Jr.,
SHEILA JACKSON LEE, Texas Wisconsin
MELVIN L. WATT, North Carolina DARRELL ISSA, California
MIKE QUIGLEY, Illinois GREGG HARPER, Mississippi
DANIEL MAFFEI, New York
Christal Sheppard, Chief Counsel
Blaine Merritt, Minority Counsel
C O N T E N T S
----------
DECEMBER 10, 2009
Page
OPENING STATEMENTS
The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in
Congress from the State of Georgia, and Chairman, Subcommittee
on Courts and Competition Policy............................... 1
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Ranking Member, Subcommittee on
Courts and Competition Policy.................................. 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on Courts and Competition
Policy......................................................... 4
WITNESSES
The Honorable M. Margaret McKeown, Judge, United States Court of
Appeals, Ninth Circuit District, San Diego, CA
Oral Testimony................................................. 6
Prepared Statement............................................. 8
Mr. Charles G. Geyh, Associate Dean of Research, John F.
Kimberling Professor of Law, Indiana University, Maurer School
of Law, Bloomington, IN
Oral Testimony................................................. 21
Prepared Statement............................................. 23
Mr. Richard E. Flamm, Author of ``Judicial Disqualification:
Recusal and Disqualification of Judges;'' Conflicts of Interest
and Law Firm Disqualification, Berkeley, CA
Oral Testimony................................................. 38
Prepared Statement............................................. 40
Mr. Eugene Volokh, Gary T. Schwartz Professor of Law, University
of California, Los Angeles, CA
Oral Testimony................................................. 50
Prepared Statement............................................. 53
Mr. Norman L. Reimer, Executive Director, National Association of
Criminal Defense Lawyers, Washington, DC
Oral Testimony................................................. 57
Prepared Statement............................................. 60
Mr. Arthur D. Hellman, Professor of Law, University of
Pittsburgh, Sally Ann Semenko Endowed Chair, Pittsburgh, PA
Oral Testimony................................................. 66
Prepared Statement............................................. 68
APPENDIX
Material Submitted for the Hearing Record........................ 111
EXAMINING THE STATE OF JUDICIAL RECUSALS AFTER CAPERTON v. A.T. MASSEY
----------
THURSDAY, DECEMBER 10, 2009
House of Representatives,
Subcommittee on Courts and
Competition Policy
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 1:05 p.m., in
room 2237, Rayburn House Office Building, the Honorable Henry
C. ``Hank'' Johnson, Jr. (Chairman of the Subcommittee)
presiding.
Present: Representatives Johnson, Conyers, Quigley, Jackson
Lee, Coble, and Chaffetz.
Staff Present: (Majority) Christal Sheppard, Subcommittee
Chief Counsel; Elisabeth Stein, Counsel; Rosalind Jackson,
Professional Staff Member; and (Minority) Blaine Merritt,
Counsel.
Mr. Johnson. We are officially starting this Subcommittee
hearing.
Without objection, the Chair will be authorized to declare
a recess of the hearing, and I will now recognize myself for a
short statement.
I would like to welcome everyone to the hearing today and
offer my thanks to the panel members for being here with us.
I am holding this hearing because the issue of judicial
recusal is extremely important to me. As a former magistrate
judge and as Chair of this Subcommittee, I firmly believe that
we must maintain the integrity of our judiciary. Judicial
misconduct, particularly in the form of a judge to recuse him
or herself when there is a conflict of interest, must be taken
seriously. Our Federal judges go through an extensive process
in the Senate to make sure that they are fit to hold a lifetime
judicial appointment, and I believe that most judges genuinely
do their best to be fair and impartial in every case and
appropriately recuse themselves when there exists an actual
bias or the appearance of bias. As such, Congress should take
care not to impose unnecessary or overly burdensome procedural
or substantive burdens on our already overworked judicial
system.
However, the limited instances where judges do not recuse
themselves when there is an appearance of bias creates a
tension between the need for an independent judiciary and the
need for some Federal oversight to ensure that cases are
decided fairly.
There have been three recent cases which highlight the
problem with judicial recusal. The first is the Siegelman case.
Siegelman's codefendant, Scrushy, claimed that he was entitled
to a new trial because the district court judge should have
disclosed his extrajudicial income from business contacts with
the United States Government. The court denied Scrushy's
motion. The 11th circuit on appeal held that Scrushy's claim
held no merit. However, the court did not explain why the
motion was denied.
This was a highly political case and it raises one of the
concerns that I hope our witnesses will address today, and that
is: Should the court be required to specifically explain why a
motion for recusal was denied?
In another case, Georgia State senator Charles Walker, a
highly respected former newspaper publisher and entrepreneur,
as well as the first African American chosen as Senate majority
leader in Georgia, was charged with mail fraud, tax fraud and
conspiracy regarding his prior publishing business. The
indictment filed against Mr. Walker may have been based on
politics instead of actual wrongdoing. Mr. Walker was also
assigned a judge who had close ties to the principal competitor
of Mr. Walker's newspaper business. Mr. Walker did not submit a
request that the judge recuse himself. However, after his trial
he maintained that his defense counsel should have moved to
disqualify.
The final recusal issue I want to talk about today is Judge
G. Thomas Porteous, a district court judge who is currently
under consideration by the Impeachment Task Force of the House
Judiciary Committee on which I sit.
Judge Porteous failed to recuse himself from cases where he
had financial relationships with several attorneys who appeared
before him. Now, the issue of whether Judge Porteous behaved
improperly is still something the Task Force is considering.
However, if the task force finds that Judge Porteous should
have recused himself in those cases, it certainly highlights
the legitimate concerns held by many that judges might not be
the best people to determine whether they should recuse
themselves from a case.
So what should Congress do? Clearly a balance must be
maintained between the need for transparency in judicial
recusals, and the need for a judge's private life to be
protected. However, the failure of a judge to recuse himself or
herself when the outcome leads to a miscarriage of justice, is
one that must be taken very seriously. There have been some
suggested procedural reforms for judicial recusal laws. One
would be to allow appeals. Another would require judges to
explain their disqualification decision. And yet another would
be to allow disqualification motions to be decided by other
judges.
Some States have already acted to amend their judicial
recusal laws to allow for more transparency. However, the
Federal recusal laws continue to lag behind. I look forward to
the testimony from today's witnesses that will address whether
reform to judicial recusal laws is ripe for review; and if it
is, what steps Congress can and should take to enact
substantive and procedural reforms to judicial recusal laws.
I now recognize my colleague, Mr. Coble, the Ranking Member
of this Subcommittee, for his opening remarks.
Mr. Coble. Thank you, Mr. Chairman. I appreciate you having
called this hearing. It appears we have a formidable panel from
whom we will hear subsequently.
There has always been inherent tension among the three
branches of our Federal Government. The founders intended that
no one branch would dominate the other two and that each branch
would guard its own constitutional territory from the other
two. This system of checks and balances has done a wonderful
job of defending civil liberties, promoting national security,
and expressing the popular will through a deliberative
legislative process.
The inevitable by-product of this construct is
institutional tension, especially when one branch ``checks''
the other. But it is natural. And, in fact, it is a sign of
civic health.
This hearing wasn't convened to create more tension than
already exists. We are not here to poke a coequal branch of
government in the eye. All Members of the Courts Subcommittee
respect the work of the judiciary, even if we don't always
agree with their work product in every instance. Following the
founder's example, we appreciate the importance of judicial
independence. Article 3 judges should be insulated from
political pressure to render unbiased opinions, and that is why
they enjoy life tenure. However, this doesn't mean that Federal
judges are entitled to a free pass in life.
We have a constitutional obligation to conduct oversight on
judicial operations, just as the judiciary is charged with
reviewing our statutory handiwork for legal defects. But short
of impeachment, a congressional prerogative rarely exercised,
there is little we can do to discipline judges for ethical
lapses. Still, we need to work with the judiciary to identify
areas of concern, if they exist, and to develop corrective
responses when appropriate. As a former court Subcommittee
Chairman and a long-time Member of this House Judiciary
Committee, I have participated in previous oversight efforts to
review the state of judicial ethics and behavior. Much of this
work culminated in a rewriting of the Judicial Conduct and
Disability Act of 1980, the statutory mechanism by which
individuals may file complaints against Federal judges.
While I am sometimes plagued by senior moments, Mr.
Chairman, I do recall that this matter peripherally touched on
the matter of recusals, with some arguing that recusal statutes
were dead law. In other words, judges weren't likely to recuse
themselves from cases, and lawyers were too frightened or
uneasy to ask them to do so.
And if memory further serves, part of this Subcommittee's
impeachment investigation of District Judge Manny Real during
the 109th Congress involved a recusal issue.
No open-minded litigant, in my opinion, believes that he or
she is entitled to win in Federal Court; but, every litigant
expects and deserves to be treated fairly. At minimum, this
means the presiding judge must be free of bias or prejudice
toward any litigant. If this isn't the case, the judge, I
believe, should step aside.
We have a balanced panel of witnesses who can speak to this
issue in great detail, and we are eager to hear from them.
I emphasize that I am not out to get the judiciary. I don't
know if the complaints about the state of recusal jurisprudence
are anecdotal or genuine. That is why we are having this
hearing, and I look forward to participating.
Mr. Chairman, at this time I would like to make a unanimous
consent request that we enter into the record a statement and
other information submitted by Michigan Supreme Court Justice
Robert Young about his State's experience with their recusal
laws.
Mr. Johnson. Without objection.
Mr. Coble. I yield back the balance of my time.
Mr. Johnson. I thank Ranking Member Coble.
Next I will recognize Mr. John Conyers, a distinguished
Member of this Subcommittee and also the Chairman of the full
Judiciary Committee.
Mr. Conyers. Thank you, Chairman Johnson.
Welcome judges, panelists. This is almost like a bright
line. There are two schools of legal thought here; brilliance
all over the place, but still a bright line. I don't want to
reduce this to simplistic terms, old school versus new school
or retrograde versus progress. But goodness, gracious, here is
a problem begging for consideration. We have distinguished
members of the court and teachers of law saying nothing wrong;
accidents will happen. You don't have to be so perfect about
all this.
A judge in Alabama, not a citizen in Alabama, a judge in
Alabama, that goes up to the 11th circuit and for no reason,
denies the disqualification order.
Why?
We don't choose to give you any reasons why. You don't need
to know why. Well, it may be some of your business, but it is
none of your concern.
This is the Governor.
And, so in instance after instance--this is what has
brought me to love and revere the Committee on the Judiciary.
In the Congress--we get this opportunity that very few others
do. Yes, inside of the bar associations there will be brilliant
discussion back and forth about it; but here in this country,
the democratic society that is held up, the constitutional
democracy that is written and spoken about and emulated and
practiced and sought after, locks up more people than any other
place in the world.
What causes that? Well, don't get over-excited about that,
Chairman, it is just the way that the cookie crumbles. You
uphold law and order.
What about transparency?
We, Federal jurists, don't have to tell you why we have
ruled thus and so. Do you know how much clogging of the courts
and how much backing up if judges had to explain everything
they did? Go read the precedents. Go back and take a refresher
course, but don't bother us with having to explain why a
Governor of one of the several States can be denied relief
without any explanation whatsoever.
That offends me. And it is only a small part of the problem
that brings us here today. There are so many areas that we need
to reexamine, not to help somebody or put your thumb on the
scale, but just to bring this thing of simple justice home.
Do you know how many--and I conclude on this--do you know
how many people in this country feel that they got really taken
going through a court process? That the thing was against them
from the beginning? I know enough to feel disturbed about this
question of recusal that Chairman Johnson has put on the table
this afternoon. I thank him for his efforts.
Mr. Johnson. You are quite welcome, Mr. Chairman. Thank you
for your statement.
Without objection, other Members' opening statements will
be included in the record.
Now I am pleased to introduce the witnesses for today's
hearing.
Our first witness is the Honorable M. Margaret McKeown from
the United States Court of Appeals for the ninth circuit where
she has served since 1998. Judge McKeown has published and
spoken extensively on the topic of judicial ethics. She is also
the chair of the Judicial Conference of the United States Code
of Conduct Committee, and we welcome her to this hearing.
Our second witness is Charles Geyh who is the Associate
Dean of Research, John F. Kimberling Professor of Law, Indiana
University, Maurer School of Law. Professor Geyh also serves as
a director and consultant of the American Bar Association
Judicial Disqualification Project. He is widely known for his
scholarship in addressing the Federal courts and judicial
recusal laws. Welcome, sir.
Our third witness is Richard Flamm. Mr. Flamm is an
attorney specializing in judicial ethics and judicial recusal.
He is an expert in that area. He wrote the leading treatise in
this area called ``Judicial Disqualification: Recusal and
Disqualification of Judges.'' Welcome, Mr. Flamm.
Our fourth witness is Eugene Volokh. Professor Volokh
teaches constitutional law, criminal law, and tort law at the
UCLA School of Law. Before going to UCLA, he clerked for
Justice Sandra Day O'Conner on the U.S. Supreme Court and for
Alex Kozinski for the U.S. Court of Appeals for the 9th
Circuit. Professor Volokh was one of the attorneys for A.T.
Massey Coal Company in Caperton v. A.T. Massey Coal Company. We
welcome him here today.
Our fifth witness is Norman L. Reimer. Mr. Reimer is the
executive director of the National Association of Criminal
Defense Lawyers, which is an organization dedicated to ensuring
justice and due process for all. Prior to serving in that
position, Mr. Reimer practiced law for 28 years, most recently
at Gould, Reimer, Walsh, Goffin, Cohn, LLP. Mr. Reimer is
active in judicial recusal issues and assisted in writing the
amicus brief in Caperton v. Massey. Welcome, Mr. Reimer.
Last is our sixth witness, Mr. Arthur D. Hellman, who is a
professor of law at the University of Pittsburgh School of Law.
Mr. Hellman is a dedicated scholar in the field of judicial
ethics and has written several articles on the point. He has
testified before both the House and the Senate Judiciary
Committees on Federal court issues, and assisted with the
Judicial Improvements Act of 2002. Welcome, Professor.
Thank you all for your willingness to come and participate
in today's hearing. Without objection, your written statements
will be placed into the record. We ask that you limit your oral
remarks to 5 minutes. You will note that we have a lighting
system that starts with a green light, and after 4 minutes it
turns yellow, and then red at 5 minutes. After each witness has
presented his or her testimony, the Subcommittee Members will
be permitted to ask questions subject to the 5-minute limit.
Mr. Johnson. Judge McKeown, will you now proceed with your
testimony.
TESTIMONY OF THE HONORABLE M. MARGARET McKEOWN, JUDGE, UNITED
STATES COURT OF APPEALS, NINTH CIRCUIT DISTRICT, SAN DIEGO, CA
Judge McKeown. Thank you, Chairman Johnson, Mr. Coble and
Members of the Committee. I appreciate being invited to testify
here today. I am the chair of the Judicial Conference Committee
on Codes of Conduct, which is the Federal judges ethics
committee and I appear here on behalf of the Judicial
Conference. There are three points I would like to touch on in
my testimony this afternoon: first, the recusal standards
applicable to Federal judges; second, the extensive framework
by which the judiciary endeavors to abide by these standards;
and, finally, the role that our committee plays in advising and
educating judges.
Ethics is a critical part of the fabric of the Federal
judiciary, and impartiality lies at the heart of our work.
Judicial recusal is formally governed by two key statutes,
28 USC section 144 and section 455(a). In addition, Federal
judges abide by the Ethics in Government Act, gift regulations,
and other statutes, and the Judicial Conference imposes further
constraints through the judicial Code of Conduct. The language
in your Federal statute 455 is also mirrored in our Code of
Conduct.
There are five specific situations in which recusal is
mandatory and may not be waived. Those are detailed in my
written testimony.
Let me just add one key note here concerning disqualifying
financial interests. In the Federal system, unlike in some
State systems, there is no de minimis exception for recusal
based on a financial interest. Even owning a single share of
stock in a party mandates recusal, and Federal judges are not
permitted to put their assets into a blind trust.
In addition to the mandatory recusal situations, there is
one important other mandatory recusal, and that is whenever a
judge's impartiality might reasonably be questioned.
These statutes and the Code are actually part of a much
broader framework that the judiciary has developed both to
promote transparency and to provide multiple checkpoints in the
recusal process. Several institutional safeguards operate
together to ensure that judges have the tools they need to
follow the recusal statutes and that judges who have real
conflicts not hear those cases.
They begin with a system that randomly assigns cases to
judges within a particular court. And at the outset and
throughout the entire proceeding, the judge has an obligation
to assess whether disqualification is required. Guarding
against conflict of interest is of paramount importance to us.
Besides random assignment, the Judicial Conference requires
all judges to use an electronic conflict screening system. This
ensures that judges do not inadvertently fail to recuse based
on financial interest in a party. In addition, all judges file
detailed annual disclosure reports, which I know Members of
Congress are also familiar with in their roles, and we also
disclose our attendance at publicly funded educational
seminars, and these reports are publicly available.
The safeguards are intended to minimize conflicts before
they occur and to avoid the possible need for recusal motions.
Beyond these systemic safeguards, there is, of course, the
litigation process which permits any party to file a recusal
motion, and appellate review provides a further avenue of
recourse.
Finally, the Judicial Conduct and Disability Act, which I
believe was referenced here by Congressman Coble, and the
procedures under that act may be available to provide a check
on flagrant violations of the recusal law. The Judicial
Conference, through the Breyer Commission, has recently
strengthened the procedures under that act for addressing
complaints against judges.
Finally, let me turn to the role of our committee.
Basically we are an advisory body, an ethics service center,
and a sounding board to help judges try to comply with this
wide array of ethical principles. We are actually often called
the ``Dear Abby Committee,'' and we give confidential advice to
judges. Our goal is to make sure that ethics guidelines for
judges protect the fairness and impartiality of the judiciary
while striking the right balance with judicial independence. We
have more than 80 publicly available advisory opinions, many of
them on the points of recusal, and our recusal advice goes well
beyond the Code and the statute.
Also, a judge who needs ethics advice, in addition to doing
his or her own research, can come to the committee for informal
advice; and if informal advice doesn't suffice, we provide
written opinions, confidential letters of advice. We respond to
more than a thousand informal inquiries every year. We issue
over a hundred formal opinions, and much more informal advice
is offered through our education program.
A key function of our committee is education for judges,
law clerks and staff, and in the last few years we have greatly
increased that education outreach. We offer a number of printed
publications for the judges, Internet Training, and also in-
person training.
In conclusion, both the judges and the public have a broad
array of tools and a transparent environment to ensure the fair
and impartial adjudication of cases, while maintaining the
independence of the judiciary needed to uphold our laws. We
regard ethics as a very serious matter.
I appreciate appearing here today. I welcome your
questions.
Mr. Johnson. Thank you, Judge McKeown.
[The prepared statement of Judge McKeown follows:]
Prepared Statement of the Honorable M. Margareet McKeown
__________
Mr. Johnson. Professor Geyh.
TESTIMONY OF CHARLES G. GEYH, ASSOCIATE DEAN OF RESEARCH, JOHN
F. KIMBERLING PROFESSOR OF LAW, INDIANA UNIVERSITY, MAURER
SCHOOL OF LAW, BLOOMINGTON, IN
Mr. Geyh. Thank you, Mr. Chairman, for the opportunity to
be here today. It is not just a privilege but a pleasure to
appear before the Committee. I served as counsel many years ago
under Robert Kastenmeier. And as former counsel, I would be
remiss not to thank Kirsten Zewers for helping out and
organizing me for this event.
I am testifying on my own behalf here and not on behalf of
the American Bar Association and other organizations with whom
I have worked on this matter.
The Supreme Court's decision in Caperton, which really is
part of the title of this hearing, does not apply to the
Federal courts directly. It was a case that concerned a State
judge, and it was decided under circumstances unique to States
that elect their judges. The thing about Caperton, though, is
it does underscore the importance of impartial justice and the
role disqualification plays in preserving it, and in that sense
is a good launching point for this hearing.
My starting point is to say, on the whole, I do think that
we have an excellent Federal judiciary, and that it is
committed to promoting impartial justice. And I do think that
on the whole, section 455, which has been 200 years in the
making, has served the judiciary pretty well. That doesn't
mean, though, that there aren't problems. And in my testimony I
allude to several of them. A couple of them I will reserve for
my written testimony, and focus on one here which has to do
with the judicial disqualification procedure and the issue of
judges deciding their own disqualification motions.
Section 455, as Judge McKeown testified, indicates first
that a judge must disqualify himself whenever his impartiality
might reasonably be questioned, and then goes on to enumerate a
series of rather specific instances when judicial
disqualification is necessary.
It is extremely rare in my review for a judge to willfully
refuse to disqualify himself under circumstances in which the
judge knows he must. On the whole, I think our judges are too
committed to impartial justice for any but the isolated bad
apple to do that; and you refer to Judge Porteous, and he may
be among them. Ironically, however, I think it is precisely, or
at least partly, because our judges are so committed to
impartial justice that we have a problem.
Let me explain. Judges take an oath to be impartial. Judges
ascribe to a code of conduct in which they are directed to act
at all times in a manner that promotes, that preserves
impartial justice. They are asked also to follow a code that
says you should avoid even the appearance of impropriety, which
means even the appearance, frankly, of partiality.
Now that being said, when a judge is called upon in the
context of a disqualification proceeding to disqualify herself
because she is biased, or because she is perceived to be
biased, she is being asked to admit that she is not impartial,
that she has created a perception problem that her oath and the
code tell her she shouldn't be creating. In other words, she is
being accused implicitly of performing in a way that is
suboptimal.
For that reason I think, understandably, judges who are
deeply committed to impartial justice are predisposed to think
that they can be impartial and they cannot reasonably be
perceived otherwise. And it is not at all uncommon for lawyers
in the field to say that the judges take umbrage when the judge
stands accused of being less than impartial, precisely because
I think judges try very hard to be.
Now, when a judge is called upon in the circumstances,
against this backdrop, it is troubling to me that the standard
operating procedure in disqualification proceedings is for the
judge whose disqualification is being challenged to be the
judge who decides her own fitness to sit.
First, it strikes me as unfair to the judge in question to
ask her to second-guess her own impartiality and her own
commitment to preserving the appearance of impartial justice.
Second, it is unrealistic, it seems to me, to expect anyone
to be able to candidly assess the extent of their own bias.
Research in the psychology field underscores this, the
complexity of that. It is also hard to expect someone to
understand how they would reasonably be perceived by another,
which is equally complicated.
Third and finally, when a party is concerned that a judge
appears to be too biased to be fair, which is really what is
going on in disqualification proceedings, it is odd in the
extreme to have that issue resolved by the very judge who is
allegedly too biased to be fair. Having a judge grade their own
paper in this way is bound to create a perception problem,
which strikes me as being uniquely problematic for a judiciary
which is committed to the appearance of impartial justice.
To me, the solution is one that many States have adopted,
which is to adopt what I would suggest to be a two-part process
that could be embedded in a procedural section of section 455.
Part one says; let the judge receive the motion initially and
make an initial determination as to whether disqualification is
in order. Oftentimes, that will come very quickly. The judge
will be unaware that one of the many defendants is a party with
respect to whom a relative is on the board of directors and
will quickly step aside.
If, however, the judge concludes that disqualification is
unwarranted, then the simple solution, it seems to me, is to
send the matter to another judge. And I would contend that many
of the situations in which you second-guess this qualification
determinations, could be resolved by returning the matter to a
different judge that is not going to be subject to these
suspicions.
Thank you.
Mr. Johnson. Thank you, Professor Geyh.
[The prepared statement of Mr. Geyh follows:]
Prepared Statement of Charles G. Geyh
__________
Mr. Johnson. Now we will hear from Mr. Flamm.
TESTIMONY OF RICHARD E. FLAMM, AUTHOR OF ``JUDICIAL
DISQUALIFICATION: RECUSAL AND DISQUALIFICATION OF JUDGES;''
CONFLICTS OF INTEREST AND LAW FIRM DISQUALIFICATION, BERKELEY,
CA
Mr. Flamm. Thank you very much, Chairman Johnson.
Chairman Johnson, Ranking Member Coble, other Committee
Members, I am very honored and pleased to be here to talk about
a subject that is very interesting to me. My interest in this
field is twofold. I have the academic interest that you
mentioned. I wrote the book. In the process of writing that
book, for better or worse, I probably had occasion to review
more judicial disqualification precedents than probably anybody
else on the planet.
But I also have a practical interest in this field as well.
I have acted as a consultant or expert witness in dozens of
disqualification proceedings, and in that capacity I had
occasion to experience some of the concerns that Chairman
Conyers alluded to, which is that not all litigants are very
happy with the way that the system works. And in fact, a great
many litigants don't believe that they are getting justice when
they go before American courts.
But I didn't come with an ox to gore or with any kind of
agenda. I was asked to testify, and I said I would, because I
thought with my background I might be able to provide a
valuable resource to the Committee. My first step in that
process was to provide you with some written testimony in which
I basically tried to outline what the status of Federal recusal
law is at this point and how it got to be that way.
I don't know if you have had a chance to look at it yet,
but Chairman Conyers characterized this panel as brilliant
scholars who think there is nothing wrong with the law. I don't
know if the first half of that statement applies to me, but I
know the second one doesn't. I seriously believe there is a
good deal that is wrong with Federal judicial disqualification
law as it exists today.
I talked about a few problems in my testimony. I didn't go
into great depth. The main thing I alluded to was one of the
two statutes that Judge McKeown referred to, 28 USC section 144
which is on the books today, along with section 455. So
currently, the Federal Government has two different Federal
disqualification statutes.
Nobody, including the courts, seem to understand how they
are supposed to interact between each other, and the 3problem
is only partly mooted by the fact that the Supreme Court
decided in 1921 not to enforce section 144 in the manner that
Congress had intended.
I was told that one of the issues that might be up for
discussion by this Committee is the possibility of enacting
what is known in jurisdictions that have a preemptory challenge
or preemptory disqualification statute; 28 USC section 144, as
enacted by Congress in 1911, was intended to be exactly that,
but the Supreme Court refused to enforce it in that manner. And
as I think Professor Geyh has said, it has now come to be
thought of as dead law by a lot of scholars.
I had several other things to say that I won't have time to
say, so instead of doing that, I would like to address a couple
of the other issues that Chairman Johnson and Chairman Conyers
brought up.
First, should a court explain its reasons for why or why
not it has chosen to recuse itself? I think the answer to that
is obvious; but one of the problems that is caused by not doing
it may not be so obvious.
I have a very lengthy book on judicial disqualification; 95
percent or more of all of the precedents in there are cases in
which disqualification motions were denied. The reason that is,
is because judges do recuse themselves in a great many
circumstances. A lot of judges are very conscientious about
doing so. But very few judges who recuse themselves take the
time to write an opinion explaining why they did so. In
contrast, many judges who don't disqualify themselves write
lengthy opinions explaining why they are not disqualifying
themselves.
As a result, another problem we have with the law is people
who are trying to figure out what the law on disqualification
is may get a skewed idea of what they should expect when they
go into court.
Let me say one last thing in the small amount of time
allotted.
Ranking Member Coble alluded to Robert Young's submission,
and I haven't seen it, obviously, on the Michigan experience
with judicial disqualification.
The Michigan experience has indeed been very interesting.
In 2003, a new justice on the court, Justice Weaver, was asked
to recuse herself in a case, but was told that judges aren't
supposed to explain. It is an unwritten tradition of the
Michigan Supreme Court that judges don't explain the reasons
why.
She researched it and came to the conclusion that that was
false, and what ensued has been a donnybrook in the Michigan
courts that has lasted for years about whether judges do have
the requirement. And that is something we can talk about if you
have further questions.
Thank you.
Mr. Johnson. Thank you, sir.
[The prepared statement of Richard E. Flamm follows:]
Prepared Statement of Richard E. Flamm
__________
Mr. Johnson. I don't know if the panel heard those rings
going off. It is a call for us to go do what we are supposed to
do, which is to press that button yes, no, or present. We have
about 10 minutes left on the votes. I think it would be wise
for us to knock off here. We will recess and come back and have
the rest of the opening statements.
We have three votes and I would suppose we will be back in
about half an hour.
Mr. Conyers. Mr. Chairman, perhaps with a group as
distinguished as this, many of these problems can be resolved
by the time we come back from the floor.
Mr. Johnson. I am sure that many would fully appreciate
promptness, a prompt decision on dealing with such an important
area.
[Recess.]
Mr. Johnson. Okay, ladies and gentlemen, we are back in
session. The next witness that we will hear from is Mr. Volokh.
TESTIMONY OF EUGENE VOLOKH, GARY T. SCHWARTZ PROFESSOR OF LAW,
UNIVERSITY OF CALIFORNIA, LOS ANGELES, CA
Mr. Volokh. Thank you very much for inviting me to testify.
It is a great honor and privilege to be here. Much of my recent
interest in this area stems from my having participated as a
lawyer in the Caperton v. A.T. Massey Coal Company case, but I
am not here as a lawyer for any party. I am expressing solely
my own view as an academic. In any event, since the case, after
the Supreme Court, has returned to the State court system,
nothing that Congress is likely to do in this area will have
any bearing on that case.
Mr. Johnson. Let me stop you and ask you whether or not
your mike is on.
Mr. Volokh. The green light is on, but maybe I am not
speaking into it. Is this any better or----
Mr. Johnson. No, it is not. But that is not your----
Mr. Volokh. Is this any better?
Mr. Johnson. No, but go ahead. Just try to speak a little
louder.
Mr. Volokh. My main interest in this area has to do with
the constitutional standards having to do with recusal, which,
of course, are a very small part of the recusal picture. As a
result I also have some thoughts on the substantive rules of
recusal.
Obviously the procedural matters as we have heard discussed
here are also very important. On those, I would largely defer
to my colleagues who are much more knowledgeable on this. Also
in a discussion with counsel, I suggest that it might speak
more broadly about some of the issues that this raises. So I
want to just take a big-picture view of appearance of
impropriety standards and the rules having to do with recusal.
I hope that this is helpful but perhaps it is too big a picture
view.
It is often tempting for discussions of this subject to
turn quickly to appearance of impropriety standards or, in
fact, to follow the Federal statute standards that focus on
when a judge's impartiality might reasonably be questioned and
saying that whenever that might happen, when the impartiality
might reasonably be questioned, the judge ought to recuse
himself.
I want to suggest that the matter is considerably more
complex than that. It is complex because judges are people, and
are people who come to the court, and who while they are on the
court acquire various things. They acquire, for example,
political connections. Generally, to be appointed a Federal
judge, one needs the backing--obviously one needs to be
appointed by a President--one needs the backing of State
senators. One often gets into that position as a result of an
extensive career, much of it in with political connections.
One also acquires opinions and past statements often about
controversial issues. One acquires friends and former
colleagues. So, for example, especially once they are judges,
judges have law clerks who often become litigants before them.
And of course, many judges in small towns know many--excuse me,
I shouldn't say litigants--but lawyers before them. Many judges
in small towns know most of the local lawyers because there are
only so many lawyers traveling in their circle.
Judges acquire spouses and families, many who have business
interests of their own. Judges may acquire assets. Even though
of course they don't continue to have side jobs, there are
assets they continue to have.
Judges also in addition to acquiring friends, they acquire
enemies. People, for example, may harshly criticize them in or
out of court, or people may oppose their confirmation by the
Senate, may testify against them or, for that matter, in favor.
So as a consequence, decisions by judicial recusal rules
have to take into account a bunch of different interests, and
not just interest in preventing even the appearance, just
reasonable person of possible partiality. To take one example,
I would take it that a reasonable person who hasn't really
focused on the matter would say that if somebody has called the
judge highly pejorative names, if somebody has had a press
conference condemning the judge as a Fascist and a crook, for
example, that might leave the judge's impartiality to be
reasonably questioned. After all, judges are human beings who
may take umbrage at that and may end up holding it against the
person. But we can't have a system in which that in which that
leads to automatic recusal, because then people can just judge-
shop simply by insulting enough judges.
Likewise, my guess is that many perfectly reasonable
laypeople, when they hear that a case is being argued before a
judge by somebody who has clerked for the judge--that is often
a very close relationship which leads often to enduring
friendship or at least close acquaintanceship--they may say
well, there is something potentially improper about the judge
knowing one of the lawyers; yet that is certainly not a Federal
court practice, to require recusal in such cases. And before
the U.S. Supreme Court, many of the top, top lawyers are ones
who had clerked for the very justices before whom they are
arguing.
Of course we want to make sure that judges are impartial.
To the extent possible, we want to preserve the appearance of
impartiality, but we have to balance that against a lot of
other factors: the fact that we want to have people be able to
criticize judges without having that automatically form the
basis for recusal; that we don't want judges to be hermits;
that we want judges to be able to be judges in the same area
where they grew up and acquired many connections and practiced
law.
So as a consequence, I just want to caution against broad
discussion of an appearance of impartiality as a legal
standard. It is in some measure the legal standard, but it has
ended up becoming something other than what the words seem to
appear. It has ended up generating a bunch of rules, such as
the extrajudicial source rule, that try to clarify it and make
it more precise and in some measure lead to absence of recusal,
even when quite reasonable people might conclude there is some
question about the judge's partiality. I think that that has to
be recognized, and before people get upset in particular
situations about the possibility of appearance of impartiality,
they should recognize that sometimes there are other factors
that need to be balanced against it.
Mr. Johnson. All right. Thank you, Professor Volokh.
[The prepared statement of Mr. Volokh follows:]
Prepared Statement of Eugene Volokh
__________
Mr. Johnson. Now we will have the opening statement of
Professor Reimer.
TESTIMONY OF NORMAN L. REIMER, EXECUTIVE DIRECTOR, NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, WASHINGTON, DC
Mr. Reimer. Mr. Chairman, Ranking Member Coble and
distinguished Members, thank you for holding the hearing on
this important issue, and thank you for inviting the National
Association of Criminal Defense Attorneys to express our
concerns and suggestions.
I want to augment just one aspect of my testimony and
propose one very concrete step that Congress can take to
ameliorate the corrosive impact of electioneering upon the
reality and perception of an independent and impartial
judiciary. I don't hold myself out as an expert on the law of
judicial recusal nor as an expert on the scope of permissible
conduct in judicial elections. You have got a great panel of
experts that can speak much more eloquently to those issues.
Rather, I speak on behalf of the Nation's Criminal Defense Bar
and the hundreds of thousands of accused persons each year who
are most keenly impacted by judicial campaign rhetoric and the
resulting judicial behavior when reelection or retention
approaches.
There is no greater risk to fundamental constitutional
rights than the risk borne by the accused who appear before
judges who must pick their way through the minefield of
judicial election. And in this regard I note that this problem
is to a large extent a State problem where the Congress' role
is obviously limited.
Indeed if you consider the Caperton case, which was the
genesis or one of the geneses for the Committee holding this
hearing, look at what that case was. It was a battle, a civil
fight over land rights and ultimately money. It had nothing
whatsoever to do with criminal law. The rights of the accused
are fundamental constitutional rights. But the means of
dislodging the sitting judge was a blistering diversionary
attack upon his decision-making in criminal matters.
This tactic is replicated time and time again in virtually
every jurisdiction that elects its judges. As a result, the
candidate who emerges victorious is often the one that espouses
the most anti-defendant, pro-prosecution points of views.
In answer to Ranking Member Coble's question as to whether
this is a genuine problem or merely anecdotal, I think it is a
genuine problem. I think that the pervasiveness of it,
particularly in its impact on the criminal justice system, is
one of the reasons, as Chairman Conyers noted, that so many
people don't feel, don't feel that they got a fair shake.
Imagine what it is like to be called into court to answer
an accusation and know that the judge who will decide the
critical issues in the case, including whether or not you
perhaps will receive a prison sentence, has promised to ``stop
suspending sentences'' or stop putting criminals on probation
or has stated that she doesn't believe in leniency or, worse,
pledge to rule a certain way with certain parties and
witnesses.
All of these examples are cited in our written testimony.
They are real. They are documented. The roadkill here is not
just the rights of the accused whose cases are judged by judges
who have to worry about how a potential adversary may
mischaracterize their decisions. The true victim is the
perception of fairness and impartiality of the judiciary that
is the moral underpinning of our justice system.
The people's confidence in the system hinges on the
perception by the guilty, by the innocent, by all who are
touched by the criminal justice system and the larger
community, that judges are not predisposed to decide a case one
way or another.
There can be little doubt that a potent solution lies in
the adoption of recusal rules with some real bite. Strong
recusal requirements may in the first place deter the
objectionable rhetoric by giving all judicial candidates cover
to avoid it. Now, whether or not a Federal solution is
achievable consistent with our fundamental principles of
federalism is questionable, but what Congress can do--and I
would argue should do--is expose the full extent of the
problem. You should shine a light on the practices and
consequences that are undermining our system of justice.
There is considerable evidence for the proposition that
there is a provable nexus between election campaign rhetoric
and judicial outcomes.
Now, I know the Committee for Economic Development has
issued a report called Justice for Hire which has some great
examples in there, but I will just tell you that in my own
practice, which I was a practicing attorney, as you noted Mr.
Chairman, before I came to the association, and I will never
forget once representing a young man who was a passenger in a
car from which a large quantity of drugs had been seized from
the trunk. The testimony at the hearing was so preposterous
that even the seasoned court officers were giggling at the
police account. At the end of the testimony, the judge called
the lawyers up to the bench and said, Well, what am I going to
do here? I said, Well, Judge, it looks like you are going to
have to suppress the evidence; to which the judge responded,
Mr. Reimer, I know it is a bad stop, but I can't suppress. I
have got to run next year. Will your client take probation?
Now, rather than rely on anecdote, conjecture, and a small
array of independent studies, Congress should authorize funding
for a research grant to study the relationship between judicial
campaign speech and judicial conduct in criminal proceedings.
If the research confirms what many of us suspect and believe,
and what some of the studies that have already been done show,
it will provide an overwhelming impetus for States to act to
listen, to some of the suggestions that we have heard here
today, and to accept Justice Kennedy's invitation, in his
opinion in Caperton, to adopt recusal standards that are more
rigorous than merely the due process floor that was set in
Caperton.
This would be a great step forward, and I can tell you that
one thing is certain: If the present trajectory is continued,
the combustible mix of electoral politics, money, and unchecked
rhetorical intimidation will destroy the people's trust in the
independence of our judiciary. Thank you.
Mr. Johnson. Thank you Mr. Reimer.
[The prepared statement of Mr. Reimer follows:]
Prepared Statement of Norman L. Reimer
__________
Mr. Johnson. And last, but certainly not least, Professor
Hellman.
TESTIMONY OF ARTHUR D. HELLMAN, PROFESSOR OF LAW, UNIVERSITY OF
PITTSBURGH, SALLY ANN SEMENKO ENDOWED CHAIR, PITTSBURGH, PA
Mr. Hellman. Thank you, Mr. Chairman. The starting point
for much of today's discussion is of course the Caperton
decision which deals with recusals in State courts. One year
before the Caperton decision, two Justices of the United States
Supreme Court expressed concern about the impartiality of a
Federal judge. The judge was Manuel Real of the Central
District of California. He was sitting by designation in the
District of Hawaii, and the case involved competing claims to
funds in a brokerage account that had been established by the
former Philippine President Ferdinand Marcos. Justice Stevens
in a dissenting opinion described some of the things that Judge
Real had done in the case. He then said, ``These actions
bespeak a level of personal involvement and desire to control
the proceedings that create at least a colorable basis for a
concern about his impartiality.'' He suggested that it would be
best if the case were transferred to a different judge on
remand. And Justice Souter agreed.
Well, the case went back to the district court. Judge Real
continued to preside over those proceedings. Some of the
parties requested an accounting. They got one but it wasn't
very satisfactory. So they appealed to the Ninth Circuit.
Just last month the Ninth Circuit handed down its decision.
The court noted that Judge Real's written accounting was filled
with cryptic notations. His oral accounting contradicted the
record on several points. All this, said the panel, confirmed
the doubts about his impartiality that Justice Stevens and
Justice Souter had expressed. So the panel did order the case
reassigned to another judge.
Well, this wasn't the first time that Judge Real has been
criticized by his fellow judges for departing from the ideal of
neutrality. In January 2008, he was formally reprimanded by the
Judicial Council of the Ninth Circuit, under the 1980
misconduct statute that you heard about a moment ago. The
council found that Judge Real improperly intervened in a
bankruptcy case to help one litigant at the expense of another.
Well, there was another misconduct proceeding against Judge
Real, this one a pattern and practice complaint. It was
investigated very thoroughly by the Ninth Circuit Judicial
Council. After that investigation, the council concluded that
Judge Real failed in many cases to give reasons for his
decisions when the law required reasons. The council pointed to
his obduracy in implementing directives from the appellate
court. It found that his actions had caused needless appeals,
unnecessary cost, undermined the public's confidence in the
judiciary. These occurrences were more than anecdotal, more
than occasional.
Well, that is a pretty damning recital, isn't it? And you
would think that these findings would lead to some sort of
discipline, but they did not. The council dismissed that
complaint and it did so because the national committee, the
Judicial Conduct Committee, in an earlier phase of these
proceedings, had said that a pattern or practice of this kind
could be misconduct only if there was clear and convincing
evidence of willfulness. The council found that there just was
not.
Well, the 1980 act is not the subject of this hearing, and
this isn't the occasion to debate the correctness of that
ruling. The point, rather, is that Judge Real's actions in the
Philippine case and the bankruptcy case were not aberrations in
his very long career on the bench. They were all too
representative of a pattern of behavior that is totally at odds
with judicial impartiality and the rule of law, the goals that
Justice Kennedy and the Court spoke of in Caperton.
Mr. Johnson. Professor Hellman, if you would sum up. Though
I really want to know what happened to this judge, but if you
could sum up because the red light is on. Thank you.
Mr. Hellman. Sure. Judge Real's behavior doesn't fit any of
the standard categories of bias or partiality. A new kind of
law is needed, and one law that I think would be helpful would
be a peremptory challenge law that is discussed in some of the
other statements. I would be happy to elaborate on that for the
panel. Thank you.
Mr. Johnson. Thank you, sir.
[The prepared statement of Mr. Hellman follows:]
Prepared Statement of Arthur D. Hellman
__________
Mr. Johnson. Now we will go to questions. I will take the
first questions. Each one of us will have 5 minutes to ask
questions.
In my statement, I have addressed the Siegelman, Walker and
Porteous cases. Clearly these cases exist because of some
default in our Federal judicial recusal laws. How can we mend
the holes in our laws on the front end to prevent these types
of issues on the back end? I want all of the panel members to
respond to that, starting with Professor Hellman.
Mr. Hellman. Well, I will take up the suggestion of a
peremptory challenge law. This is something that I think 19
States have adopted. Basically the way I would work it is that
each side would have one peremptory challenge of the judge. You
would just say, I think this judge should not sit on the case.
The judge would not sit on the case. Congress can build on the
experience but I would not put it into the judicial code right
away. I suspect that the Judicial Conference will express
concerns about it.
What I suggest, rather, is a pilot program to be monitored
by the Federal Judicial Center which would report to Congress
and the Judicial Conference. And based on that report, you
could decide whether to expand the program, modify it, or
discontinue it. So I think that would take care of a lot of
those problems.
Mr. Johnson. Thank you, Professor. Mr. Reimer.
Mr. Reimer. Yes, Mr. Chairman. Our association has not
taken a formal position on the various options that are out
there. We have concerns about separation of powers in terms of
how the judiciary regulates itself. But we do believe that
consideration should be given, whether it is in the first
instance by the courts and their own governing mechanism or
ultimately by Congress, to several different remedies,
including the concept that motions for recusal should be
decided by other judges: There is also a very interesting
suggestion of a peremptory challenge of a judge, as well as the
most important, which is full disclosure of any potential
conflicts.
Mr. Johnson. Thank you, sir. Professor Volokh.
Mr. Volokh. I wish I had some suggestions that I felt
confident enough in, but I am afraid I don't. I would be happy
to yield to my colleagues.
Mr. Johnson. All right. Thank you, sir. Professor Flamm.
Well, I called you Professor but----
Mr. Flamm. I like it. Without knowing the specific facts of
all the cases, I am not sure if I can properly opine on what
provisions might prevent some of the problems you have alluded
to.
The peremptory challenge provision that has been suggested
is one that I think has worked very well in my home State of
California. It seems to be fairly popular with attorneys and
parties, and most judges but to my knowledge aren't too upset
with it. I am not sure if it would cure any of the problems in
the cases you have referred to, however, because peremptory
challenge usually has to be exercised right at the outset of
the case or right at the outset when a litigant first learns
the identity of a judge. If they don't exercise it at that
point, they can't do it later on. And usually when a motion to
disqualify is based on bias, in most cases the bias doesn't
appear until much later in the case. I am not sure if
peremptory challenge would solve the problem in the specific
cases you refer to.
I am not exactly sure of what would solve all the problems,
but a more rigorous enforcement of the laws Congress has
already enacted would certainly be a start.
Mr. Johnson. Thank you, sir. Professor Geyh.
Mr. Geyh. As I testified before, I think that the business
of asking a different judge than the one who stands challenged
would be a useful place to start, both for judges who are well-
intentioned and think that they are impartial when they are
not, and for judges who are less than well-intentioned who
could conceivably be outed by such a process.
The problem is--and this refers back to something Mr. Flamm
mentioned--in some of the cases we are talking about here, we
have very late motions being filed or none at all for
disqualification, and the success of this process does depend
to no small extent on people filing timely motions, which
complicates my analysis because we can't refer something to
another judge if a motion isn't filed in the first place at the
appropriate point in time.
Mr. Johnson. Thank you, sir. Last but not least, Judge
McKeown.
Judge McKeown. Let me first say that it is always difficult
to generalize from three specifics or anecdotal situations.
Nonetheless, it may be worth studying to see if there is
something in the current system that didn't work.
But I think, as the other gentlemen have noted, that in the
case of certain claimed dishonesty or direct flouting of the
law that it is very difficult to write that into a procedure,
and that there may be situations that can't be cured other than
by the proceedings that have gone on. Judge Porteous, as you
know, was referred to the House by the Judicial Conference
itself.
I would like to comment very briefly, if I might, on the
peremptory challenge issue or the one strike, just to let you
know that this issue has been considered in the past by the
Judicial Conference which opposes the peremptory
disqualification of judges for several reasons. One, that it
does encourage judge-shopping. Second, there is concern that
that kind of a peremptory challenge would threaten the
independence of the judiciary. And third, that it poses some
very real issues in terms of case management, particularly, for
example, in small districts, where an example might be the
Southern District of Georgia where you only have three judges
and in certain towns you only have one judge. If you have this
kind of automatic disqualification there are very real concerns
for both parties and the system with respect to cost and delay.
The Federal districts are often very large, unlike the States,
which generally operate in a county system.
So there are a number of reasons that the Judicial
Conference opposed the peremptory disqualification, but of
course we have in place the motion for recusal. If that motion
is made, then there is quite a regularized procedure for that
to move through the courts and on appeal.
Mr. Johnson. Thank you, Judge. My time has expired. The
next person to ask questions will be the Ranking Member, Mr.
Howard Coble.
Mr. Coble. Thank you, Mr. Chairman. At the outset I said it
appeared that we had a formidable panel. My words were
prophetic; we do indeed have a formidable panel. Good to have
you all with us.
Professor Hellman, this may have been touched on, but I
want to revisit it. Would a recusal system that allows a
litigant one peremptory challenge per case be subject to abuse,
A; and if so, what kind of abuse and how could this be checked?
Mr. Hellman. Thank you, Mr. Coble. Yes, it is subject to
abuse. It can be, and the States have had some experience with
that. I believe that the proposal was actually made to Congress
by the late attorney John Frank among others in 1973. At that
time, he pointed to experience in the States. We have now had,
what, 30-plus more years of experience to draw on. So I think
there is the risk. If you write the statute correctly and if
you adopt my suggestion of doing it initially as a pilot
project, those risks can be minimized.
Mr. Coble. Professor, why would you not allow or permit a
peremptory challenge in criminal cases?
Mr. Hellman. Well, first, I would. I am not opposed to
them. The reason I suggested starting with civil cases and not
including the criminal is twofold. First, every criminal case
includes the United States Attorneys Office as a party, many of
them include the Federal defender. And if either of those
organizations decide that a particular judge could not hear
their cases fairly, you would be in real trouble. Now I don't
think they do that without great provocation. But if it
happened it would be very disruptive.
The other--and Mr. Reimer may have something to say about
this--it may be that each defendant in a criminal case would
have to have his own right. And you have all these multiple-
defendant narcotics conspiracy and other conspiracy
prosecutions today, and that would be really disruptive.
Whereas in a civil case, you could simply say, One to a side
and that is it, no matter how many parties. So it is not
opposition. It is just some practical concerns at the initial
stage.
Mr. Coble. I thank you, sir.
Mr. Reimer, you were sort of tough on candidates who accept
contributions from third parties and who champion tough-on-
crime philosophy. I am not being critical of you about that.
What should happen to a candidate who campaigns on the ground
that he opposes the death penalty and that he is subsequently
elected? Should he be recused from hearing capital cases?
Mr. Reimer. Well, if the determination rests, as I believe
it does now, pretty much exclusively in the hands of the jury,
I don't think that that necessarily is a disqualifier.
Mr. Coble. Would the same answer apply to, say, attorneys
or candidates who accept contributions from trial lawyers?
Should they be recused on tort cases?
Mr. Reimer. Well, on the issue of money, you have the
Caperton case which basically talks in a very vague sense about
the relative amount of money and the likelihood that it would
impact the person's or the judge's ability to be fair.
I am more concerned and my association is more concerned
less about the money itself than what the candidate is saying
about how they will decide cases. And to me, that is a
different slant on it than Caperton, where there was at least
an appearance of a connection to one of the parties. That is a
separate issue.
But when you have people going out there and saying, I am
going to--I am always going to deny probation, for example,
that is not a fair adjudication. Even if the judge makes the
right decision in a particular case, the litigant is not going
to feel that they got a fair shake.
Mr. Coble. I got you.
Professor Volokh, your written testimony suggests that you
don't think the current system is plagued with this many
problems. Do you think some critics exaggerate the deficiencies
of the system for other reasons?
Mr. Volokh. Every system has quite serious problems in
particular cases. Some of them are--sometimes they may
represent systemic problems with the system. Some of it may be
the inevitable errors with any system that has humans in it.
Judge Porteous, for example, is being considered for
impeachment. That, as I understand it, is for pretty serious
transgressions. It is very hard to set up recusal rules that
could adequately cabin people, judges, who engage in such
transgressions.
Likewise, as I understand the second case that was
mentioned, there was no motion to recuse filed before a judge.
It is very hard to see that, declining to recuse in that case,
as an example of a systemic problem with the recusal system
because, as I understand it, all recusal systems are premised
on a motion being filed in the first instance. So I am sure
there are problems there as with any other system.
While I have heard some pretty systemic problems, at the
very least alleged, I think with considerable weight behind
them as to certain State systems, my sense is that the Federal
system seems to have the kinds of problems that any working
system or one that relies on human beings would have.
Mr. Coble. Thank you, sir. I see my red light is
illuminated. I thank you for being with us.
I yield back, Mr. Chairman.
Mr. Johnson. Thank you, Mr. Ranking Member.
Next up at the plate is Chairman Conyers of the full
Committee.
Mr. Conyers. Thank you, Chairman. This has been a
fascinating discussion this afternoon, necessitated by the fact
that there is an investigation of an impeachment process going
on in the room that this hearing was supposed to have been
heard of a Federal judge. Only last week or the week before, we
resolved another case of a Federal judge who reconsidered and
decided to terminate his career as a judicial officer. And what
this discussion has demonstrated to me, Chairman Johnson, is
that this is a much more intricate subject than first meets the
eye. It is complex.
Of course, I have to acknowledge quickly that lawyers like
to make issues complex as a matter of profession perhaps. But
behind the question about what to do and all of the issues that
are involved in this, there is another question that has
occurred to me and I think every Member of this Subcommittee.
That is the larger question of the fairness of the American
system of justice, period, without particular reference to the
judges, State or Federal.
One of the things that draw us and our staff to is, how do
you do that? It is so fascinating, isn't it, that here we are
in a country that has been working through this process for 236
years or so, and there are still some very big questions out
there that have yet to be resolved.
I would like to just--please feel free to interject your
views at any point in this. I am approaching this as the
Chairman of the Committee, that I went to the Speaker of the
House then to it appeal that I be the first African American in
the history of the Congress to be placed on the Judiciary
Committee. And he was impressed with that. Speaker John W.
McCormack was his name.
At that time there were only lawyers could be on the
Judiciary Committee; no scholars or professors or business
people. We have relaxed that now. We don't do that anymore. In
the Senate Judiciary Committee, they adopted the same process.
So we will be looking, beyond this afternoon's hearings,
for any subsequent recommendations of how we ought to proceed
from you and any ideas that may come from your colleagues or
anybody in the system, because this is the way democracy works
at its best, when we have a candid review.
Now, I came to Congress working with Bob Kastenmeier. I am
going to tell him about you and what you did and said here,
Professor, because much of it was very good. Could I get an
additional minute, Mr. Chairman?
Mr. Johnson. Without objection.
Mr. Conyers. What I would like to do now is just to invite
all of you, if our Chairman would indulge, to let you tell us
how this subject matter relates to the greater issue that hangs
over us all as members of the bar and members of the court in
terms of how these two come together and how we ought to look
at this exciting part of the Federal legislature.
The Judiciary Committee reviews constitutional amendments
that are proposed by the Members; jurisdiction over the
criminal justice system and the Federal corrections system as
well; intellectual property matters of trademark, patents,
copyrights, all exciting subjects, treaties even. If any of you
would just like to give us a parting thought about how you see
this discussion I am trying to raise, I would be very grateful.
Mr. Geyh. I would be happy to offer a 30-second answer. It
seems to me that the overriding theme of the committee's work
is access to justice in all of the variety of forms that you
articulate. And that that means that we need to worry, in order
to provide access to justice, about how judges are selected,
which is what Mr. Reimer is talking about; how judges are
disciplined and removed, and Judge McKeown talked a little bit
about that process; and how the courts are administered, which
is beyond the scope of this hearing but is very much in your
bailiwick.
To me, the problem is a perennial one because access to
justice is an always-moving target. It is not a matter of
getting it right because there is no way to get it right. You
can only do the best you can at a moment in time, and that is
really what the story is all about. I think right now we are at
a given place in time and worrying about disqualification rules
and what is the best system for the current place and time,
that might not have been the best system 50 years ago. But that
is fine. That is why there is always a Congress.
Mr. Reimer. If I can, just to amplify on some of the points
I was making before, we have approximately 2.5 million people
in prison. We have a conviction mill in our misdemeanor courts
that is an absolute disgrace. So we have countless numbers of
our citizens passing through these systems. The mix of money
and rhetoric and electioneering is undermining the faith of the
people in the independence and impartiality of the judiciary.
That is the problem, and I don't think that one hearing is
the answer. I proposed a study. I don't think one study is the
answer. But we certainly have to shine a light on it if we are
going to correct it, because, ultimately, if the people don't
have confidence in the judicial system, we are in trouble.
Mr. Conyers. Your Honor.
Judge McKeown. Thank you. Mr. Chairman, I appreciate that
you have recognized how intricate and complex these issues are
and not just subject to a simple solution. But something that
you said really was brought home to me and that is the
importance of fairness in the system.
On that point, I think it is important, not just the actual
fairness of the system, but the public's perception of the
system. That is something that I think the Committee obviously
is looking at here. What can we do?
Well, certainly we welcome, on the part of the Federal
judiciary, simply having the subject of ethics being so
prominent. It is important to us. It is important to the
public. And we go back from this hearing with a renewed mission
and vigilance to look at our ethics procedures and to continue
with our education and with our advice.
I am happy to take back to members of the judiciary the
many comments we have gotten from the Members, your thoughts
and your concerns. It is a privilege to be able to be here, and
we welcome ethics being first and foremost. It is important to
us. It is important to the public.
Mr. Hellman. I will just add one thing to that. I think one
of the problems that underlies some of the concerns is that
judges are so used to carrying on most of their work in
confidence that they don't always realize how important
transparency is. I think one of the virtues of this hearing is
that it emphasizes that. And I am sure Judge McKeown will go
back to the Judicial Conference to the Circuit Council and to
the other judges, and that will help to build understanding of
the importance of not just doing the right thing, but telling
people what is going on.
Mr. Conyers. I thank you very much, Mr. Chairman.
Mr. Johnson. Thank you, Mr. Chairman.
Is there anyone else that cares to respond? Okay. All
right.
Well our next questioner--interrogator, some say--is the
Honorable Sheila Jackson Lee out of Houston, Texas.
Ms. Jackson Lee. Mr. Chairman, let me thank you very much
for this very provocative hearing. And I think the Judiciary
Committee, as I have come to understand, has a dominant role
both in the business of this Congress, but also the important
business of justice in this Nation. I believe in the optimism
of America. And frankly believe that we can design the
appropriate framework for the Federal bench to contemplate this
whole area of recusal.
I would offer to say that as I listened to one idea--and I
love creative thought about a preemptive strike of sorts--that
I would only offer this expanded explanation. The Federal
courts saved me, as a representative of a body of people that
were second-class citizens for centuries. And I am reminded of
the courts that Thurgood Marshall went in, and was able to find
Federal judges that would provide the opportunity for justice,
the opportunity in Brown v. Topeka, and Justice Warren to be
able to open the doors for opportunities for those individuals
like myself. It has happened for women. It has happened for
Latinos. It has happened for others of less economic
conditions. So I am sensitive to this question of recusal or
the automatic recusal.
I believe that our basic framework should be in the
integrity of our judiciary. But at the same time when that
integrity is pierced, we lose. The justice system loses.
America loses.
And I do want to associate myself with the Chairmen, both
the Chairman of the full Committee and the Chairman of the
Subcommittee, on cases such as the former Governor of Alabama,
Peter Polyvios and Vicky Polyvios, a case or cases that I have
followed. The interesting point about these cases is that they
include prosecutorial abuse where these petitioners are seeking
documents that would help produce prosecutors and agents for
interviews. We don't know whether there was a hand-in-glove
relationship between prosecutors and judges. The Jenna Six case
I consider expanded, because it deals with prosecutorial abuse
where there was inaction as opposed to action.
So my point would be that we need to look at these
questions with a very keen eye and a sensitive heart and mind,
because what we do want to have happen is that lawyers can go
into a court and find justice.
So I ask this question: I think the overall problem that we
have is a stigma that comes about when a judge recuses himself
or herself. People begin to look for suspicious behavior, and
it may be that that judge has the highest level of integrity.
So my first question would be--and I would like you to go
down the line. We need to develop from the highest levels the
Attorney General's Office, the Judicial Conference, the Supreme
Court, that recusal is not an indictment. It is not a
conviction of that court and that judge, at the minimal level,
if they decide to do that on the grounds of making sure there
is integrity. My first question.
The second question is: Do you feel that we have a system
of justice where there are victims because a judge has not
recused themselves, because there is conflict of interest? And
if that is the case, we cannot tolerate it.
I would appreciate it if we could start with the judge
quickly on the stigma and how we can break that to make it all
right for a judge to make a determination based on our criteria
that they recuse themselves. If you could quickly go down
because my time is short.
Judge McKeown. Thank you. On that, I guess I would
paraphrase yours to say recusal is not a four-letter word.
Ms. Jackson Lee. I like that.
Judge McKeown. We would like to have judges know that. I
think we have made a good start at that. We have a number of
these advisory opinions that start through all the reasons a
judge should recuse, and we want judges to be mindful of that.
With your comments in mind, I think it just renews the
importance of education in this area, because recusal is good
for the judiciary and for the public when done appropriately.
Ms. Jackson Lee. And you know that justice has been denied
probably in cases where that recusal did not occur?
Judge McKeown. You know, I do not have personal knowledge
of various circumstances. I have seen cases where it came up on
appeal and the court of appeals either reversed a denial of
someone who declined to recuse, or a case where the court of
appeals said, yes, we believe it was improper for the judge to
stay on the case, and we are going to reassign that case both
through our statutory authority and through our inherent
oversight over the district courts.
Ms. Jackson Lee. Mr. Chairman, could you indulge me an
additional minute so I could just go down the line and just
include in there whether you believe justice has been denied. I
ask unanimous consent, Mr. Chairman.
Mr. Johnson. Without objection.
Mr. Geyh. The first problem to which you allude is one that
really is a cultural one within the judiciary. At common law,
the notion that a judge could be biased was simply not even
contemplated. It was an irrebuttable presumption that a judge
was impartial, that he couldn't be challenged. And while we are
past that now, I think there is still the norm that they are
impartial. I think it is a fair norm.
But getting to my earlier testimony, the problem is that
judges are people too, and in the 20th century and beyond, we
understand that judges as people, too, are subject to biases.
So we need to reach that kind of agreement that, yes, we can
presume impartiality without begrudging the fact that judges
are human, too, and they are capable of the same biases and
thoughts that others have. And when that happens and when they
go over the top, they need to step down.
As to whether justice has been denied, I am sure that it
has. The problem is that the only circumstances we have in
which a judge has done badly is typically in cases where they
are outed. So we have a hell of a time figuring out about the
great silence, but I am sure it has happened. Identifying cases
is hard.
Ms. Jackson Lee. Thank you.
Mr. Flamm. There are certainly cases where justice has been
denied, and there are an exponential number of cases beyond
that where litigants believe justice has been denied. I guess
the one thing I would say about that is that no system that
Congress--no framework that Congress enacts is going to cure
that. There are always going to be problems with the system.
There are always going to be some litigants that don't believe
justice was served.
But as to the particular one that you alluded to, which is
a mechanism for trying to alleviate some of that concern, the
peremptory challenge, I think you have expressed a concern
about a stigma associated with that. I think the opposite is
true. I think that when there is no peremptory challenge, what
tends to happen is that if a litigant is going to do anything
at all, they are going to challenge a judge for cause and they
are going to make a claim that the judge is actually biased.
That is where judges tend to get their hackles up and there
tends to be a real donnybrook and there tends to be more public
attention. If a peremptory challenge exists, and it can be
exerted in a timely fashion, there is usually no stigma
involved at all.
Ms. Jackson Lee. That wasn't my exact point, but that is
okay.
Mr. Flamm. I will just add, in my home State of California,
where we do have the peremptory challenge right, judges don't
even see the peremptory challenge. It goes directly to the
clerk and a new judge is assigned. So there is no stigma. Maybe
that is one of the advantages of the peremptory challenge
system.
I guess I should say that even in your home State of Texas,
there is a peremptory challenge rule on the book now for
visiting judges, and so far there has been no report that I
have heard of any concern about abuse with that use of that
statute.
Mr. Volokh. One reason I am cautious about some of the
procedural proposals is precisely because I think recusal
should be seen as not something to be embarrassed about. And in
fact it is good if judges in close cases, even if they think
recusal isn't strictly necessary, step aside just to avoid any
shadow of a doubt.
Ms. Jackson Lee. Without the stigma.
Mr. Volokh. Exactly. One problem, though, is that some of
the suggestions might--I am not at all sure they will--but
might have actually counterproductive effect along those lines.
So for example, has has been called to encourage the
publication of opinions explaining why a judge recused himself.
That may be very good, but it might also leave judges in close
cases to decline to recuse themselves because they don't want
to set up precedent for themselves in the future, or they don't
want to be seen as implicitly criticizing another judge who
didn't recuse himself under similar circumstances. So in a
sense, the ability to do a silent recusal actually encourages
people to recuse themselves without having to give all the
reasons and without having more attention. Perhaps it is still
a good idea to have that, but once you consider some of these
possible perverse consequences----
But as to your second question, I am positive that in any
system the size of the Federal judicial system, injustice has
been done because of failure to recuse them and because of lots
of other reasons. The question is: Are there particular
proposals that will diminish the risk that injustice will be
done, rather than substituting some other possible causes for
injustice which might be as bad or worse?
So the question isn't just, has it ever happened? I am sure
it has happened. The question should be: Is there something
that we think will materially decrease the risk of it happening
without compromising other very important concerns?
Mr. Reimer. I want to just confine myself to answering the
two questions; but just, again, recognizing that the slant that
we have on this is concern about what is going on in the States
and particularly the 39 States that elect judges. First of all,
court administrators should encourage a climate in which
recusal is acceptable. In many jurisdictions, judges are
saddled with huge dockets and there is a lot of internal
pressure to move these dockets along. So we need to have court
administrators say, Look, if there is the slightest question in
your own mind, give up the case. It is not bad. You won't get a
demerit for doing that.
With respect to whether or not injustice has taken place, I
don't know. I am sure that it has. But what I do know is that
the perception of injustice is taking place. We can't know,
because we can't look into the heart and mind of an individual
judge to know whether or not their decision was colored by
statements that they made before they took the bench or getting
to the bench.
I am not concerned about the heart and the mind. I am
concerned about the mouth. If they say it, and a litigant goes
before them and they make a decision, it is a perception that
the person hasn't had a fair chance.
Mr. Hellman. To start with the second question,
unfortunately there almost certainly have been injustices in
particular cases, because the cases are handled by judges who,
as others have said, are human. The task for the judiciary and
the Judiciary Committee and Congress is to minimize those and
to build structures that will make them as infrequent as
possible. I do think that the judiciary, as Judge McKeown said,
takes its responsibilities in that very seriously. And on the
question of whether a recusal is seen as an admission of a lack
of impartiality, I am not sure that it is. I think that in many
instances, it is seen as a judge conscientiously doing what the
law requires him or her to do.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. You
have been very kind. I hope for the Polyvios, and others as
well, we can get justice. I yield back.
Mr. Johnson. Thank you.
Next we will have questions from a battle-crusted gentleman
who practiced law and was a litigator before he was elected to
Congress from the great State of Illinois, Mr. Mike Quigley.
Mr. Quigley. Thank you, Mr. Chairman. A great introduction.
About 200 trials under my belt, and I can still say after
surviving 10 years in Cook County, some of my best friends are
judges. But the recusal system worked pretty well there. And in
the criminal cases I worked on, you had an absolute right to a
substitution of judge, and in very serious cases, too, which I
will tell you from practical experience saved the system a
tremendous amount of angst and problems. If you know anything
about Cook County, it worked very well. It worked through the
chief judge's office. So the judge didn't know about it unless
the case was already before him. And then in a certain time
frame, you still had the right to make a motion for
substitution and a right of recusal. So I thought it worked
quite well. It was very rare that you saw a judge find out
about it or get offended by it.
But as to the minority of judges--and I think it is a
minority--who are deficient in some respects, in some cases,
that can be ethically deficient or without the realization that
they might have at least the appearance of impropriety, I
always found it a very difficult time finding another judge
willing to sit in judgment, and say I think my guy I go play
golf with, or my partner, one of my fellow judges, you know,
should step down in this because, as you say, I think someone
said, besides the stigma, they are being accused implicitly of
not being impartial. So is it harder to do it yourself? Or is
it harder to do for somebody else that you worked with? So two
professors I think mentioned that.
I mean, if you could give us your assessment of whether or
not you think judges can effectively sit in judgment of each
other toward this sort of motion?
Mr. Geyh. Your point is well taken. To me, a big part of it
is the perception of justice. When you have the fox guarding
his own henhouse, it creates more of a perception problem than
when you defer the matter to another judge, another neutral.
I think there is a study that the American Adjudicative
Society ran in the 1990's which did reveal that it is hard for
judges to rule on each other. A situation where, you know, in a
variety of situations where the judge basically has to find out
what the facts are in an inquiry--for example, in taking the
Judge Porteous matter, where a lot of information was simply
not disclosed because questions were not asked. If those
questions were asked, for example, of the lawyers involved as
to what they did or did not do vis-a-vis the judge, would they
have perjured themselves? Or would they have answered directly?
We will never know because the judge himself was the only one
conducting the hearing, not someone else.
I think your point is very well taken, that it is hard for
a judge to rule on his colleague in much the same way as it is
hard to rule on himself. So I think it is an important
procedure to consider if for no other reason than I think it
does protect the seemingly self-interested aspect of a judge
grading his own paper.
Mr. Flamm. Professor Volokh and I were discussing that
during the break, and I mentioned that in California when a
judge is challenged for cause, the motion is transferred to
another judge, but it isn't one of the judge's colleagues.
Typically a Superior Court judge in California, if they are
challenged for cause, the motion will be transferred to a
different superior court, and a judge from a completely
different court will decide the motion.
There has been no survey of how this has worked out and all
of the evidence is anecdotal. But from everything that I have
seen and heard, it seems to work pretty well, and I am
certainly aware of a number of situations in which judges,
California superior court judges, came down very hard on judges
from other courts in saying that they should have recused
themselves and didn't, when it is not clear that a judge would
have come to the same conclusion if he was going to decide that
motion himself, or if another judge on the same court was going
to decide the motion.
Mr. Quigley. If I could ask you a question, Your Honor, in
your heart of hearts, in looking at this don't you think that
issue and the issues of a judge reviewing themselves or putting
themselves--is more challenged when it is a Federal judge,
because they don't face reelection.
Just from my own perspective, a judge who at least every 6
years in Illinois has to be not reelected, but they have to be
brought back by the voters in a different process. I just think
it is human nature that a few of us, and we are all thin-
skinned, a few of us more than others, some wear black robes,
but those who do it in Federal court, perhaps it is just human
nature, and they might sense that they can't be touched, and it
is just one more reason to challenge the system as far as you
can.
Judge McKeown. Well, I can't tell you as an empirical
matter, but I can say that judges, Federal judges do in fact
recuse on a regular basis and take themselves out of cases. I
think they are comfortable, because within the system there are
usually other judges to hear the case. So it does often happen
that judges do recuse.
I don't think there is a stigma about recusal; but you
raise a question as to whether someone else should hear the
case. The Judicial Conference hasn't taken a position on that
particular point, and certainly it might merit some additional
inquiry and consideration.
Questions one might have if you were looking at this, is
there some kind of a threshold in terms of frivolousness or
patent frivolity? A second point would be, what would be the
criteria for referral to another judge, or would it be a
blanket referral?
And, finally, you would have to look at issues of cost and
delay, particularly given the geography of the Federal system.
But you raise an interesting point, obviously. I, like you,
I have practiced in both the Federal and the State system, and
I think to some degree the fact that Federal judges are not
elected in fact gives them both the ability and the cushion to
perhaps do the right thing in an easier manner because they are
not subject to an election.
Mr. Quigley. I appreciate your remarks. Thank you.
Mr. Johnson. Thank you, Mr. Quigley. We will adjourn this
hearing but I would like to thank all of the witnesses for
their testimony today.
Without objection, Members will have 5 legislative days to
submit any additional written questions which we will then
forward to the witnesses and ask that you answer as promptly as
you can to be made a part of this record.
Without objection, the record will remain open for 5
legislative days for the submission of any other additional
materials.
Again, I thank everyone for their time and patience today.
This hearing of the Subcommittee on Courts and Competition
Policy is adjourned.
[Whereupon, at 3:22 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Howard Coble, a Representative in
Congress from the State of North Carolina, and Ranking Member,
Subcommittee on Courts and Competition Policy
Thank you, Mr. Chairman. I appreciate your calling this hearing on
the important topic of judicial recusals.
There has always been inherent tension among the three branches of
our federal government. The Founders intended that no one branch would
dominate the other two, and that each branch would guard its own
constitutional territory from encroachment. This system of checks and
balances has done a wondrous job of defending civil liberties,
promoting national security, and expressing the popular will through a
deliberative legislative process. The inevitable by-product of this
construct is institutional tension, especially when one branch
``checks'' the other. But it's natural; in fact, it's a sign of civic
health.
This hearing wasn't convened to create more tension than already
exists. We're not here to poke a co-equal branch of government in the
eye. All members of the Courts Subcommittee respect the work of the
Judiciary even if we don't agree with their work product in every
instance. And following the Founders' example, we appreciate the
importance of judicial independence. Article III judges should be
insulated from political pressure to render unbiased opinions--and
that's why they enjoy life tenure.
However, this doesn't mean that federal judges are entitled to a
free pass in life. We have a constitutional obligation to conduct
oversight on judicial operations, just as the Judiciary is charged with
reviewing our statutory handiwork for legal defects. But short of
impeachment, a congressional prerogative rarely exercised, there's
little we can do to discipline judges for ethical lapses. Still, we
need to work with the Judiciary to identify areas of concern if they
exist and to develop corrective responses when appropriate.
As a former Courts Subcommittee Chairman and a 25-year member of
the full Judiciary Committee, I've participated in previous oversight
efforts to review the state of judicial ethics and behavior. Much of
this work culminated in a rewriting of the Judicial Conduct and
Disability Act of 1980, the statutory mechanism by which individuals
may file complaints against federal judges. While I'm sometimes plagued
by senior moments, I do recall this project peripherally touched on the
matter of recusals, with some arguing that the recusal statutes were
dead law; in other words, judges weren't likely to recuse themselves
from cases and lawyers were too frightened to ask them. And if memory
further serves, part of this Subcommittee's impeachment investigation
of District Judge Manny Real during the 109th Congress involved a
recusal issue.
No open-minded litigant believes he's entitled to win in federal
court. But every litigant expects and deserves to be treated fairly. At
minimum, this means the presiding judge must be free of bias or
prejudice toward any litigant. If this isn't the case, the judge should
step aside.
We have a balanced panel of witnesses who can speak to this issue
in great detail, so I'm eager to hear their views. I emphasize that I'm
not out to ``get'' the Judiciary. I don't know if the complaints about
the state of recusal jurisprudence are anecdotal or genuine. But that's
why we're having this hearing, and I look forward to participating.
Thank you, Mr. Chairman.
Mr. Chairman, at this time I'd like to make a unanimous consent
request that we enter into the record a statement and other information
submitted by Michigan Supreme Court Justice Robert Young about his
state?s experience with their recusal laws.