Excessive Calls for Recusal Threaten Judicial Independence

It is becoming increasingly common for politicians and activist groups to call for judges to recuse from high-profile cases on the flimsiest of grounds. One example was the laughable effort by Senator Elizabeth Warren to get Judge Don Willett of the U.S. Court of Appeals for the Fifth Circuit to recuse from a case involving limits on credit card fees because one of his children’s savings account invested a minimal amount in a bank that was not a party to the case. The U.S. Judicial Conference Committee on Codes of Conduct determined (correctly) that Judge Willett’s investment was too “indirect and contingent” to require recusal in the case, but this was not enough for Senator Warren.

Attorney Ted Olsen decries the “alarming increase in baseless judicial-ethics attacks” and recusal demands by non-parties in a recent Wall Street Journal op-ed. After recounting the tale above, he writes:

Interest groups have demanded that judges and justices recuse themselves based on similarly attenuated investment connections. The latest came when outside groups wrote to a federal district judge demanding that he recuse himself from considering the lawfulness of the Federal Trade Commission’s new regulation banning noncompete clauses in employment contracts. The judge holds stock in several publicly traded companies that aren’t parties to the litigation but have used noncompete clauses in their employment contracts.

Recusal tactics have become more outrageous. Normally, only parties directly involved in the litigation can file a motion to recuse a judge for an alleged conflict of interest. But we now see coordinated campaigns to pressure recusals. Left-wing interest groups are submitting demands for recusal, coupled with press releases and press conferences. This practice should stop. There is no formal mechanism for outsiders to file such recusal demands, and for good reason. They clog courts with additional briefings and hearings, causing delays and distorting outcomes. Courts should refuse to entertain these ill-intended requests, and the lawyers and litigants responsible should be subjected to sanctions. . . .

As Olsen notes, unfounded arguments for recusal will not be limited to judges on one side of the jurisprudential spectrum. Olsen notes that some same-sex marriage opponents sought to force a judge’s recusal in that litigation. He could also have noted that there are a number of prominent liberal judges married to individuals active in public policy who would be forced to recuse from many cases where the standards pushed by activists applied even-handedly.

As Olsen notes, excessive calls for recusal and baseless ethical attacks have implications beyond the individual cases in which they are raised.

These tactics are harmful. Unwarranted accusations of judicial bias or conflicts aim to intimidate judges to recuse themselves unnecessarily or, worse, to overcompensate in their judicial decisions. These accusations seek to undermine the courts’ legitimacy and the public’s confidence in the impartial administration of justice.

Those are the immediate objectives. In this latest trend of coordinated recusal attacks, however, I see a much more malicious and dangerous long-term objective. These unfounded attacks are ultimately aimed at undermining the independence of the federal judiciary as a whole. . . . This is a well-financed and coordinated effort to lay the foundation for calls for court packing and other reform measures that would destroy the judiciary’s independence.

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