States, Congress wrestling with rules determining when judges must step aside for bias

By Curt Anderson, AP
Friday, February 19, 2010

States, Congress wrestle with judicial bias rules

FORT LAUDERDALE, Fla. — Along with lifetime tenure and broad legal authority, federal judges decide for themselves whether they should step down from a case because of biases that might influence the outcome. Some in the legal community and lawmakers on Capitol Hill are now examining whether to take that power away.

“Judges might not be the best people to determine whether they should recuse themselves from cases,” said U.S. Rep. Hank Johnson, a Georgia Democrat who recently held a congressional hearing on the issue. “The failure of a judge to recuse himself or herself where the outcome is a miscarriage of justice should be taken very seriously.”

A leading proposal in Congress would require that recusal motions be heard before a second judge, which is similar to what has been adopted by at least 21 states. Another idea, now used in at least 19 states, would give each side a “strike” mandating a judge step aside when there are questions about impartiality.

At the state level, a key concern is the influence of campaign cash received by elected judges. This was the core issue in last year’s landmark U.S. Supreme Court ruling that state judges could be forced to step aside if one of their contributors has a stake in a case before them. California, Florida and Washington are among those making or contemplating new recusal rules involving campaign donations.

That ruling has no direct impact on federal judges, who are appointed for life and don’t need to raise political cash. But it has stirred new debate about the federal recusal rules, which now revolve around this standard: people are entitled to a judge who is impartial and who appears to a “reasonable” observer as impartial.

U.S. judges often come to their jobs with complex financial dealings or ideological baggage that can raise questions of fairness, and frequently must navigate a politically charged Senate confirmation process that can dredge up deep-seated prejudices. They are required to step aside in five specific situations, including when they have a financial stake in a case, have a relative involved or when they’ve expressed an opinion about the merits.

But reality can be murky, and judges aren’t accustomed to answering probing questions.

“Judges take an oath to be impartial. Some judges don’t take umbrage when a lawyer questions their impartiality, but others do,” said Charles Geyh, an Indiana University law professor who serves on an American Bar Association panel looking into judicial recusal rules. “They see it as a challenge to their integrity. It makes them angry and predisposes them not to take these things seriously.”

The federal judiciary does have a committee on codes of conduct that receives about 1,000 requests for ethics advice each year including recusal issues, said U.S. Circuit Judge Margaret McKeown, the panel’s chairwoman. She said about 100 formal, confidential advice letters are issued to judges each year.

“I personally field several hundred calls a year from judges,” McKeown said. “In my view, judges want to do the right thing.”

The ABA plans as early as next month to unveil a draft proposal for changes in judicial disqualification rules. A subcommittee of the House Judiciary Committee in December held its first hearing on the issue, but so far no consensus has emerged on legislation, according to committee aides.

“We’re not here to poke a coequal branch of government in the eye,” U.S. Rep. Howard Coble, R-N.C., a member of the Judiciary Committee, said at the hearing. “This doesn’t mean that federal judges are entitled to a free pass.”

One of the better-known disputes about judicial recusal involved duck hunting.

Supreme Court Justice Antonin Scalia had gone hunting with then-Vice President Dick Cheney as the court was considering Cheney’s request to shield from public view the details of White House strategy sessions on energy policy. Scalia wrote an opinion rejecting calls that his impartiality was in question, and then voted with the 7-2 majority to keep the meetings private.

More recently, the House is poised to begin impeachment proceedings against U.S. District Judge G. Thomas Porteous of Louisiana, who was accused of a lengthy list of ethical transgressions including rejecting a request to step down from a case without revealing financial relationships with at least one attorney in the case.

Attorneys who take on federal judges over impartiality questions can take considerable risks, said Lucian Pera, a Memphis attorney who is president of the Association of Professional Responsibility lawyers.

“When we take shots at judges or lawyers, who are officers of the court, we have to be careful,” Pera said. “Your own survival dictates that you have to be careful.”

In Florida, employment law attorney Loring Spolter claimed a federal judge’s Catholic faith biased him against Spolter’s cases involving sensitive social issues, such as a lesbian couple who became parents. As evidence, Spolter pointed to U.S. District Judge William Zloch’s donations to the law school at Ave Maria University and the judge’s hiring of some clerks from the conservative Catholic school.

Spolter also accused Zloch — a 24-year veteran of the federal bench who once played quarterback at Notre Dame — of singling out Spolter’s cases for dismissal by manipulating a random case assignment system. The judge denied the accusation, which Spolter later acknowledged was a mistake. This month, Zloch banned Spolter from practicing in South Florida’s federal courts for 3½ years and ordered him to pay over $100,000 in penalties and legal fees — one of the harshest sanctions handed out in recent memory.

Zloch declined comment for this story. Spolter, meanwhile, declined to say whether he would support reforms aimed at creating a process to handle the questions he raised. He did say he was appealing the sanctions that could cripple his law practice, which depends heavily on federal cases.

“I’m supposed to represent workers who were fired for being whistleblowers, not to be punished for uncovering facts which are important to my clients cases,” Spolter said.

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