HOUSE HEARING, 111TH CONGRESS - EXAMINING THE STATE OF JUDICIAL RECUSALS AFTER CAPERTON v. A.T. MASSEY

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. 111118

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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.,
Wisconsin
JERROLD NADLER, New York
HOWARD COBLE, North Carolina
ROBERT C. BOBBY SCOTT, Virginia
ELTON GALLEGLY, California
MELVIN L. WATT, North Carolina
BOB GOODLATTE, Virginia
ZOE LOFGREN, California
DANIEL E. LUNGREN, California
SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California
MAXINE WATERS, California
J. RANDY FORBES, Virginia
WILLIAM D. DELAHUNT, Massachusetts
STEVE KING, Iowa
ROBERT WEXLER, Florida
TRENT FRANKS, Arizona
STEVE COHEN, Tennessee
LOUIE GOHMERT, Texas
HENRY C. HANK JOHNSON, JR.,
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
NCHEZ, California
LINDA T. SA
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.,
Wisconsin
SHEILA JACKSON LEE, Texas
DARRELL ISSA, California
MELVIN L. WATT, North Carolina
GREGG HARPER, Mississippi
MIKE QUIGLEY, Illinois
DANIEL MAFFEI, New York
CHRISTAL SHEPPARD, Chief Counsel
BLAINE MERRITT, Minority Counsel
(II)
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CONTENTS
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 ...............................................................................................
The Honorable Howard Coble, a Representative in Congress from the State
of North Carolina, and Ranking Member, Subcommittee on Courts and
Competition Policy ...............................................................................................
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 .............................................
1
2
4
WITNESSES
The Honorable M. Margaret McKeown, Judge, United States Court of Appeals, Ninth Circuit District, San Diego, CA
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
Mr. Charles G. Geyh, Associate Dean of Research, John F. Kimberling Professor of Law, Indiana University, Maurer School of Law, Bloomington,
IN
Oral Testimony .....................................................................................................
Mr. Richard E. Flamm, Author of Judicial Disqualification: Recusal and
Disqualification of Judges; Conflicts of Interest and Law Firm Disqualification, Berkeley, CA
Oral Testimony .....................................................................................................
Mr. Eugene Volokh, Gary T. Schwartz Professor of Law, University of California, Los Angeles, CA
Oral Testimony .....................................................................................................
Mr. Norman L. Reimer, Executive Director, National Association of Criminal
Defense Lawyers, Washington, DC
Oral Testimony .....................................................................................................
Mr. Arthur D. Hellman, Professor of Law, University of Pittsburgh, Sally
Ann Semenko Endowed Chair, Pittsburgh, PA
Oral Testimony .....................................................................................................
6
8
21
23
38
40
50
53
57
60
66
68
APPENDIX
Material Submitted for the Hearing Record ..........................................................
111
(III)
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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. Siegelmans
codefendant, Scrushy, claimed that he was entitled to a new trial
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because the district court judge should have disclosed his
extrajudicial income from business contacts with the United States
Government. The court denied Scrushys motion. The 11th circuit
on appeal held that Scrushys 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. Walkers 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 judges 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
todays 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.
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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 wasnt 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 dont always agree with their
work product in every instance. Following the founders 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
doesnt 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 werent 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 Subcommittees 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 isnt 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 dont 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
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other information submitted by Michigan Supreme Court Justice
Robert Young about his States 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 dont 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 dont
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 dont choose to give you any reasons why. You dont 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 instancethis is what has brought me
to love and revere the Committee on the Judiciary. In the Congresswe 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, dont 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, dont 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 dont
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 manyand I conclude on thisdo 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.
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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 todays 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
OConner 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 todays 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.
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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 judges
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
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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 doesnt 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:]
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21
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 Courts 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 doesnt mean, though, that there arent
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
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to admit that she is not impartial, that she has created a perception problem that her oath and the code tell her she shouldnt 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:]
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CHARLES G. GEYH
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38
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 dont believe that they
are getting justice when they go before American courts.
But I didnt 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 dont 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 dont know if the first
half of that statement applies to me, but I know the second one
doesnt. 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 didnt 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.
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I had several other things to say that I wont 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 dont 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 Youngs submission,
and I havent 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 arent supposed
to explain. It is an unwritten tradition of the Michigan Supreme
Court that judges dont 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:]
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Mr. JOHNSON. I dont 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.
50
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 judges 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 backingobviously one needs to be appointed by a Presidentone
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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 manyexcuse me, I shouldnt say litigantsbut 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 dont 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 hasnt 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 judges 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 cant 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 judgethat is often a very close relationship which leads often to enduring friendship or at least close
acquaintanceshipthey 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 dont 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
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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 judges 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:]
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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
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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
58
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 dont 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 Nations 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 Cobles 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 dont feel, dont 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 doesnt
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 peoples confidence in the system hinges on the perception
by the guilty, by the innocent, by all who are touched by the crimi-
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nal 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
doand I would argue should dois 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 cant 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
Kennedys 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 peoples trust in the independence of
our judiciary. Thank you.
Mr. JOHNSON. Thank you Mr. Reimer.
[The prepared statement of Mr. Reimer follows:]
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66
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 todays 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 wasnt very satisfactory.
So they appealed to the Ninth Circuit.
Just last month the Ninth Circuit handed down its decision. The
court noted that Judge Reals 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 wasnt 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 publics confidence in the judiciary. These occurrences were more than anecdotal, more than occasional.
Well, that is a pretty damning recital, isnt 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
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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 isnt
the occasion to debate the correctness of that ruling. The point,
rather, is that Judge Reals 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 Reals behavior doesnt 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:]
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ARTHUR D. HELLMAN
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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
98
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 dont. 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 arent 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 dont exercise
it at that point, they cant do it later on. And usually when a motion to disqualify is based on bias, in most cases the bias doesnt
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.
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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 isand this refers back to something Mr. Flamm
mentionedin 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 cant refer something to another judge if a motion isnt
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 didnt 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 cant 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 pe-
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remptory 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 dont think they do that without great
provocation. But if it happened it would be very disruptive.
The otherand Mr. Reimer may have something to say about
thisit 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 dont 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 persons or the judges 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 toI am always going to deny probation, for example, that
is not a fair adjudication. Even if the judge makes the right deci-
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sion 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 dont
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 aresometimes 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, isnt 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.
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I would like to justplease 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 dont do that anymore. In the Senate Judiciary Committee, they adopted the same process.
So we will be looking, beyond this afternoons 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. 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 committees 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 ab-
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solute 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 dont think that one hearing is the
answer. I proposed a study. I dont 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 dont 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 publics 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
dont 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 questionerinterrogator, some sayis 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 ideaand I love creative thought about a preemptive strike of sortsthat 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
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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 dont
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 beand I would like you to go down
the line. We need to develop from the highest levels the Attorney
Generals 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.
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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. 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 couldnt 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 Congressno
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 dont 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
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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 wasnt 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 dont
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 isnt 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 mightI am not at all sure they willbut 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 dont want to set up precedent for themselves
in the future, or they dont want to be seen as implicitly criticizing
another judge who didnt 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 isnt 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
wont get a demerit for doing that.
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With respect to whether or not injustice has taken place, I dont
know. I am sure that it has. But what I do know is that the perception of injustice is taking place. We cant know, because we cant
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
hasnt 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 judges office. So the
judge didnt 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 judgesand 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.
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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 1990s 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 inquiryfor 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 selfinterested 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
isnt one of the judges 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 didnt, 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 dont 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 dont
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 cant be touched, and it is just one more reason to challenge
the system as far as you can.
Judge MCKEOWN. Well, I cant tell you as an empirical matter,
but I can say that judges, Federal judges do in fact recuse on a reg-
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ular 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 dont think there is a stigma about recusal; but you raise a
question as to whether someone else should hear the case. The Judicial Conference hasnt 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.]
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APPENDIX
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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 its natural; in fact, its a sign of civic health.
This hearing wasnt convened to create more tension than already exists. Were
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 dont 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 opinionsand thats why they enjoy
life tenure.
However, this doesnt 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, theres 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, Ive 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 Im 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 werent likely to recuse themselves from cases and lawyers were too frightened to ask them. And if memory further serves, part of this Subcommittees impeachment investigation of District Judge Manny Real during the 109th Congress
involved a recusal issue.
No open-minded litigant believes hes 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 isnt the
case, the judge should step aside.
We have a balanced panel of witnesses who can speak to this issue in great detail,
so Im eager to hear their views. I emphasize that Im not out to get the Judiciary.
I dont know if the complaints about the state of recusal jurisprudence are anecdotal
or genuine. But thats why were having this hearing, and I look forward to participating.
Thank you, Mr. Chairman.
Mr. Chairman, at this time Id 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.
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HOUSE HEARING, 111TH CONGRESS - EXAMINING THE STATE OF JUDICIAL RECUSALS AFTER CAPERTON v. A.T. MASSEY

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HOUSE HEARING, 111TH CONGRESS - EXAMINING THE STATE OF JUDICIAL RECUSALS AFTER CAPERTON v. A.T. MASSEY

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EXAMINING THE STATE OF JUDICIAL

RECUSALS AFTER CAPERTON v. A.T. MASSEY

SUBCOMMITTEE ON COURTS AND

COMMITTEE ON THE JUDICIARY

DECEMBER 10, 2009

Serial No. 111118

For sale by the Superintendent of Documents, U.S. Government Printing Office

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COMMITTEE ON THE JUDICIARY

HENRY C. HANK JOHNSON, JR., Georgia, Chairman

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EXAMINING THE STATE OF JUDICIAL

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Judge MCKEOWN. Thank you, Chairman Johnson, Mr. Coble and

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HONORABLE M. MARGAREET MCKEOWN

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