Eric J. Magnuson, BridgeTower Media Newswires
I had lunch recently with my friend Alan Morrison. I was in Washington, D.C., for a meeting of the American Academy of Appellate Lawyers. Alan and I are past presidents of that group.
Alan is a giant in appellate law. He is currently the Lerner Family Associate Dean for Public Interest and Public Service Law at George Washington University. He was the co-founder of Public Citizen Litigation Group, a nonprofit consumer advocacy organization that champions the public interest. Among its many activities is the Alan Morrison Supreme Court Assistance Project which offers pro bono legal assistance in cases seeking or opposing certiorari review in the Supreme Court, as well as helping with merits briefing and oral argument preparation. Alan has argued 20 cases in the Supreme Court and is well known to the Court and its members.
I mentioned to him that I was considering writing a piece on appellate judicial recusal. He reminded me that he was the lawyer who filed the motion in Cheney v. United States District Court, 542 U.S. 367 (2004) requesting that Justice Antonin Scalia recuse himself because Scalia had gone duck hunting with Vice President Dick Cheney while the case was pending in the lower courts. Scalia refused to recuse and took the unusual step of filing a 20-page statement explaining why. And while Alan considered Scalia to be a personal friend, after the motion, Scalia never spoke to Alan again.
The issue has continued to be a hot topic of discussion, rising again to a boiling point with the decision in Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009), where the Supreme Court held that a judge of the West Virginia Supreme Court violated the Due Process Clause of the Constitution when he failed to recuse himself from a case involving a major campaign contributor. A great deal has been written more recently about judicial recusal, particularly at the appellate level. See, e.g., “Bias is Easy to Attribute to Others and Difficult to Discern in Oneself: The Problem of Recusal at the Supreme Court,” 33 Geo. J. Legal Ethics 339 (2020); “Rewriting Judicial Recusal Rules With Big Data,” 2020 Utah L. Rev. 383 (2020); “Deciding Recusal Motions: Who Judges the Judges?,” 53 Val. U. L. Rev. 1085 (2019).
Attention lately has been focused on the actions of Supreme Court Justice Clarence Thomas and his decisions to not recuse himself in some highly political matters, including those involving anticipated testimony from his wife, Ginni Thomas. See Colbert I. King, Opinion: “Justice Thomas should step back from the Mar-a-Lago documents case,” Washington Post, Oct. 7, 2022; Kaia Hubbard, “Pelosi Says Clarence Thomas Should Recuse Himself From Jan. 6 Cases,” U.S. News & World Report, Oct. 13, 2022; Andrew Chung, “U.S. Supreme Court's Thomas temporarily blocks Graham election case testimony,” Reuters.com, Oct. 24, 2022. (That action was quickly reversed by the entire court. “Supreme Court declines to block Lindsey Graham's testimony before Georgia grand jury,” CBSNews.com Nov. 1, 2022.) Never one to shy away from a controversy, Alan once again weighed in on the recusal issue in the context of whether Justice Thomas should have recused himself from the Jan. 6 cases, ultimately proposing that if the U.S. Supreme Court will not change its process on refusals to recuse, then Congress should step in and provide for review of those refusals by the full court. “Congress should amend [28 U.S.C. § 455] to provide that if a justice denies a motion to recuse, the moving party has a right to appeal that decision to the full court, with the justice whose recusal is sought not being permitted to sit on that appeal.” “SCOTUS Justices Should Not Get the Last Word on Impartiality,” Bloomberglaw.com, April 7, 2022.
In today’s fractious and fractured political climate, public trust and confidence in our governmental institutions may be at an all-time low. The guardians of those institutions (whether they be judges, politicians, lawyers, or average citizens) need to take all steps necessary to rebuild and maintain that confidence. This is a country of laws whose founders believed wholeheartedly that the good of every one of us could only be ensured by a transparent system of government in which the actions of all three branches could be judged freely and openly. Anything that impinges on that process damages those institutions.
I fully understand the obligation that a judge has to fulfill her or his duties to hear and decide cases. Recusal should not be the automatic default any time a party raises a potential conflict. But in large measure, courts derive their authority from the confidence that the people have in them as fair and evenhanded institutions, unaffected by bias or prejudice. The rules that govern judicial recusal are designed to ensure that confidence. For me, the bottom line on judicial recusal is simple — it doesn’t matter if there is actual bias, but instead, judges must act to avoid even the appearance of bias. After all, it is about the system and the people who appear before our courts, and not about any particular judge.
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Eric J. Magnuson is a partner at Robins Kaplan LLP and served as Chief Justice of the Minnesota Supreme Court from 2008 to 2010. He has more than 40 years of experience practicing law and he focuses his practice almost exclusively in appellate courts.
