ArthurKirkland: The raw numbers seem to be less helpful than might originally appear with respect to assessing the point of split (or one-vote-decides) decisions.Few would spend $5 million to influence a single position on a court expected to rule 9–0 or 8–1; the money would flow when someone forecasts a close or split vote, and a single vote could control the practical result.Also, I wonder about the propriety of a judge deciding a case involving her church.Were I a judge, I would at least consider recusing myself from a case whose litigants included my fraternity, my college newspaper, my chess club, or a similar organization of which I am (or was) a member. I have seen a university trustee recuse himself from a case involving the university, another judge recuse herself with respect to a claim by a company with which her father had been affiliated, another recuse herself with respect to a case involving a medical practice that employed her husband.Unless a relationship with a frat is less serious than a relationship with a church, I find it difficult to accept the assertion that “a Catholic judge need not recuse himself in a case involving the Catholic Church . . . no matter how devoted he might be to his Catholicism and to the Church.”

The obvious problem with such a rule would be the difficulty achieving a quorum in cases where the Catholic church is involved; six of the scotus Justices are Catholic, as an illustrative example.

Also, I wonder about the propriety of a judge deciding a case involving her church. Were I a judge, I would at least consider recusing myself from a case whose litigants included my fraternity, my college newspaper, my chess club, or a similar organization of which I am (or was) a member. I have seen a university trustee recuse himself from a case involving the university, another judge recuse herself with respect to a claim by a company with which her father had been affiliated, another recuse herself with respect to a case involving a medical practice that employed her husband.

Unless a relationship with a frat is less serious than a relationship with a church, I find it difficult to accept the assertion that “a Catholic judge need not recuse himself in a case involving the Catholic Church . . . no matter how devoted he might be to his Catholicism and to the Church.”

top court justices must declare conflicts and step away from a case if prejudiced. If a justice is unwilling to do so, their fellows may weigh in and send him or her to the sideline if they believe it betters the cause of justice.

In other words, their fellow justices may vote a judge off a case due to their own reasoning. How common is this practice? It seems to me to be a situation that would be ripe for misuse for political reasons.

Nick

CMH… as long as the reallotment of the case is done randomly, and neither the DA nor the public defender gets unlimited such challenges, then I don’t see the harm. It means that the worst outliers, in either direction, will be removed. Both the soft touch and the hanging judge will find themselves with very few cases, with their cases systematically redistributed to the more sane, moderate judges. What’s wrong with that? It’s not at all unfair to the criminal defendant, unless you think that defendants have a right to an absurdly lenient judge, or to any particular individual judge at all. The DA may disqualify Mr. Softee because they think he’ll be too lenient, but unless every other judge on the bench is tougher on crime than Mr. Softee, the DA takes a chance that the next judge will be even more soft than the first one. And if every other judge on the bench is tougher on crime than Mr. Softee, isn’t that a pretty strong indication that Mr. Softee is outside the judicial mainstream? If the DA challenges Mr. Softee initially in hopes of getting Mr. Tough Guy Up for Reelection, well, the defense counsel has its challenge at the ready, to strike that guy.

In one case I’m aware of, the L.A. County DA’s office regularly preemptoried a judge who had given ridiculously low bail or own recognizance release to several serious offenders (I was told $5K for someone facing robbery and rape charges), some of whom then disappeared and others of whom committed serious crimes while free.

Nick

Mark Creatura: PatHMV is referring, with knowledge or not, to the rules applicable in California for the past 50 years.Our Code of Civil Procedure Sec 170.6 permits any party to disqualify a judge peremptorily.There are tens of thousands of CA lawyers who could say more than I can about how well this procedure works, but I haven’t heard that it has been disastrous.

I just read an article within the last two weeks or so that this statute was being used by a District Attorney’s office in the San Diego area to systematically disqualify one particular judge from hearing all criminal cases assigned to him.

I don’t know enough about it to say whether it constitutes “disastrous” or not, but the concept of the State’s ability to unilaterally prohibit a particular judge from hearing criminal cases doesn’t sit well with me – especially without any explanation for the reason why.

A friend of mine had a very interesting issue arise a few years ago in an action against the University of California, Los Angeles. The university was seeking his client’s business property as part of an eminent domain acquisition (off-campus facilities). The issue in the action was the FMV to be paid. The judge assigned to the case had gone to UCLA Law School, and was a sizable donor to the university. The judge did not disclose either fact (the graduation would be easily accessible knowledge; that he was a substantial donor would not be easy to find unless you received almuni magazines or wanted to make a trip to the administration building and look through donor records). My friend did not look up the judge’s background.

On appeal (the judge agreed with the university’s determination of the FMV), one issue raised was that the judge should have disclosed the relationship with the litigant, and that even if the appellate court could not find that as a matter of law a reasonable person would question the judge’s impartiality, this information was material and would have led to a peremptory challenge being filed against that judge.

One of the three justices on the appellate panel was not only a graduate of UCLA Law School, but was a substantial donor, was very active in the alumni association, Moot Court, and similar programs, and had even been named as Alumnus of the Year from UCLA Law School. [California's peremptory challenge procedure is limited to the trial courts.] He was very hostile at oral argument to the notion that support by a judge for his alma mater could affect the judge’s impartiality or a reasonable person’s perception of the same when the school was a litigant. The appellant lost.

Stepping back from these situations, the decisions seem wrong to me. I don’t think a reasonable person feels confident that the judge’s decision is unbiased under these circumstances. Yet a contrary ruling would force judges (especially those in “college towns”) to sever ties with the schools they went to, which cannot be a good thing.

Disclosure: I don’t personally know the trial judge. In the only matter I ever had in front of him, my client filed Chapter 7 without having appeared. I do know the appellate justice, who I first met as an undergrad and I regard quite highly.

Nick

Wisconsin has an automatic right of substitution for both civil matters (Wis. Stat. 801.58) and criminal (Wis. Stat. 971.20) – you get one new judge, no questions asked (more or less).

In our jurisdiction, one judge mysteriously seemed to always be the one getting a particular type of corruption case. There wasn’t enough evidence available to support any actual disciplinary proceedings, but very few people were left with a belief in her impartiality. A peremptory challenge vehicle would allow for the occasional recusal without actual “cause” (and without any taint on the judge so challenged), and should have a long-term effect of ameliorating some of the worst abuses.

http://courts.michigan.gov/SUPREMECOURT/Resources/Administrative/2009-04-112509.pdf

We clearly need more hermaphrodites and/or neuters on the federal bench.

[Whoops, thanks very much for the catch! Fixed it. -EV]

We want judges to be free to continue their social lives, and in large measure their financial lives.

I can see the argument for not wanting to impair a judge’s family members’ financial lives/careers. But why not require judges, at least those with lifetime tenure, to put all their funds in a blind trust or otherwise divest themselves? It certainly wouldn’t solve all problems–if there are indeed that many problems to begin with–but it might be something to chew over.

Do you see a separation of powers issue if Congress were to pass a statute requiring that a justice who denies a recusal motion then submit the motion to the whole Court, with the statute giving the majority of the remaining justices the authority to remove the challenged justice from consideration of the underlying case?

“I haven’t heard much evidence that there is indeed a serious problem in the federal judiciary with bias towards or against various parties.”

Perhaps there is no problem because the federal recusal standard — whether a judge’s “impartiality might reasonably be questioned” — works pretty well.

Also, I think that the fear of 4-4 splits is overdrawn. According to a study by Ryan Black and Lee Epstein, there were only 49 such ties during the period 1946-2003, fewer than one per year, although 599 cases were decided by eight-member courts.