In Ohio Republican Party v. Brunner, Judge Boyce Martin took aim at Judge Alice Batchelder for failing to recuse herself from the case.

What I find troubling is the fact that Judge Batchelder did not recuse herself from voting for rehearing this case en banc, while her husband stands for reelection this year as a state representative in Ohio, whose election will no doubt be substantially altered by the way the en banc majority ultimately decides this case. At stake here is the public’s confidence not only in the outcome of its elections, but also in the impartiality of its judges who must, from time to time, review the procedures which govern those elections.

Judge Martin cited 28 U.S.C. § 455, which requires recusal when a judge's "impartiality might reasonably be questioned," and further requires recusal where the judge's spouse has "an interest that could be substantially affected by the outcome of the proceeding." Further, Rule 2.11 of the ABA Model Code of Judicial Conduct calls for recusal where a judge's spouse "has more than a de minimis interest that could be substantially affected by the proceeding."

After the initial opinion was issued, judge Batchelder wrote a concurring opinion defending her decision not to recuse.

I write separately because Judge Martin scolds me for failing to act on my own initiative to recuse myself from the vote on whether to rehear this case en banc. His accusation cannot be taken seriously, and I cannot now — as I could not when the question first came before us — justify recusing myself. . . .

Bill Batchelder . . . is not a named party to this lawsuit, and is one of literally hundreds of candidates on the November ballot in Ohio. Unless Judge Martin is claiming that only Republican candidates will benefit from preventing vote fraud, Bill Batchelder’s candidacy is no more affected by this litigation than is the candidacy of every other individual on that ballot. But this case is not about candidates. It is about voters. It is about the right of every single legally registered voter in the state of Ohio — regardless of party affiliation — to cast his or her vote, and the corresponding right of each of those legally registered voters to be protected from having that vote diluted by illegally or fraudulently cast votes. The only thing at issue here is the ability of local elections officials to obtain the necessary information to ensure legal voting and to prevent illegal and fraudulent voting. . . .

In short, there is no basis for any claim that enforcement of the voter-registration laws affects my husband differently from any other candidates because he is a Republican, or that discovery of voter fraud is more beneficial to Republicans than to others. If, as Judge Martin suggests, my husband (and his party) stand to benefit from the outcome of this decision — that is, if my husband’s chances of winning election are improved by assuring a fair election — then my husband stands to benefit in the same way as every other Ohio voter, each of whom is entitled to participate in a fair election. None of this provides any basis upon which I could recuse.

Particularly because no party in the case sought Judge Batchelder's recusal -- and, as she notes in her opinion, no member of the court suggested her recusal before issuance of the public opinion -- Judge Martin's opinion looks like petty payback for Judge Batchelder's report as acting chief judge finding merit in misconduct complaints against Judge Martin for mishandling two high-profile cases when he was Chief Judge of the Circuit. Bill Batchleder's occupation is hardly a secret, and if the Ohio Secretary of State did not think his pending election contest as a GOP candidate justified recusal, I do not see why this should have been an issue. There is no reason for one judge to impugn the integrity of another for failing to recuse when no recusal motion was filed. If Judge Martin was really so concerned about the appearance of a conflict caused by Judge Batchelder's failure to recuse, he should have raised this matter privately before impugning one of his colleagues in public. Making public accusations of this sort may have precedent on the Sixth Circuit, as Martin notes in his opinion, but that hardly justifies his dissent (and it is regrettable that three other judges, Daughtrey, Cole, and Clay, joined the opinion).

Had a recusal motion been filed, however, I think the issue is much closer than Judge Batchelder suggests. While she is certainly correct that all voters have an interest in the fair and impartial administration of the election, it is also true that the Ohio GOP believed it could obtain partisan advantage from its lawsuit. Forcing the Secretary of State to provide mismatch information to county election boards would have made it easier for the Ohio GOP to challenge potentially ineligible voters, and the Ohio GOP clearly believed that this would inure to their net benefit this November, when Bill Batchelder is standing for re-election. Thus, I think one could reasonably argue that Bill Batchelder had "an interest that could be substantially affected by the outcome of the proceeding" that could have justified Judge Batchelder's recusal.