Shocked by Judges’ Failures to Recuse?

No shame in it. I may have been, too, in my younger years.

by Sherri L. Renner, J.D.

I have come to believe that those whose faith in the justice system survives contact with it occupy a privileged status. The nature and source of that privilege is something I’ll continue to mull, but I’m fairly certain it’s connected to systemic shortcomings in how and how frequently judges are vetted.

On a related note, a Wall Street Journal investigation that found “152 federal judges around the nation have violated U.S. law and judicial ethics by overseeing 1,076 court cases involving companies in which they or their family owned stock.” Following the report, parties in more than 800 cases were notified that the judges who presided over their cases should have recused themselves. Curious about your own judge? Check the WSJ spreadsheet.

On another related note, I recently viewed a 2021 video published on titled “What is Judicial Impartiality? Judges Explain How They Apply the Law.” In it, 10 federal judges speak convincingly about various aspects of judicial impartiality. But, alas, I then found that at least two of the judges in the video also appeared in the WSJ investigation report. Sigh.

Judge James E. Boasberg, of the U.S. District Court for the District of Columbia, was assigned ID number 313 in WSJ’s spreadsheet, and appears in the video at 2:27, 2:45, 5:35, 5:46, and 6:10.

Judge Christopher Cooper, also of the U.S. District Court for the District of Columbia, was assigned ID number 719, and appears in the video at 4:32 and 5:17.

Judge Robert Summerhays, of the U.S. District Court for the Western District of Louisiana, appears in the video but is not listed in the WSJ spreadsheet. He was the second trial judge in Roberts v. Wal-Mart Louisiana, LLC, which was reopened after the court clerk notified the plaintiff, Sloane Roberts, that the first trial judge, Rebecca Doherty — assigned ID number 888 in the WSJ spreadsheet —should have recused herself in compliance with 28 U.S.C. § 455(b)(4).

Section 455(b)(4) requires judges to disqualify themselves when they know they, or someone in their household, “has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.” Judge Doherty owned stock in Walmart during the proceeding.

According to a Reuters article, Roberts sued Walmart claiming “that Walmart’s counterfeiting accusations led to her unwarranted incarceration for more than eight months….” Judge Doherty dismissed Roberts’ claims and the case was closed.

Judge Summerhays refused to grant Roberts’ request to void and vacate the judgment of dismissal. Roberts appealed but the appellate court affirmed, finding that Judge Summerhays applied the correct law.

The panel wrote that § 455 does not authorize the re-opening of closed litigation. Instead, such requests, when based on failures to recuse, are analyzed on case-by-case bases. The applicable legal analysis includes three factors:

the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process.

The problem with these factors is their imprecision. The federal courts have taken a rather precise rule, 28 U.S.C. § 455, and muddied the waters with enough legal mumbo-jumbo to provide individual judges with enough latitude to arrive at and justify the desired result.

If all of the federal judges identified in the WSJ report so blatantly violated black-letter law and the judicial ethics codes that could earn them some discipline, how many more violate impartiality standards in less overt ways?

I don’t think there’s any way to know. I believed many of us, particularly those uninitiated in the ways of the courts, err in our thinking: Because the learned, elevated, black-robed judges are supposed to base their decisions on objective criteria — law and evidence — we assume they do so.

This assumption carries with it another: that judges embody a superhuman ability to rise above the biases, prejudices, and presuppositions that permeate society. Wouldn’t judges have to do so in order for them to base their decisions solidly on objective criteria?

But for judges to rise above societal and personal predilections, they first must identify and define them, and then appreciate the scope of these proclivities and the harm inflicted when they drive results. Wouldn’t this be rather difficult when the biases, prejudices, and presuppositions that permeate society also thicken the atmosphere that lifts judges to the bench?

Can judges really determine their own impartiality or that of their colleagues? Are we expecting too much from them?

Copyright © 2023 by Sherri L. Renner, J.D. | All rights reserved

About the Author

Sherri Renner, J.D., is the founder of LawYou America. She fully dedicates her education and years of litigation experience to helping the self-represented.

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