DISQUALIFICATION OF JUDGES
“Do laws even matter today?” asks Jonathan Turley, a noted author and Professor of Law at George Washington University in a recent article in USA TODAY. Do judges even know the law when it comes to their most important decision -- whether to recuse (remove) themselves from a case? Do judges follow the law when removing themselves or fellow judges from a case? In both instances the answer is a resounding NO. These laws do not even matter to local or our highest judges. Rarely do attorneys call them on their violations of this particular area of the law ‘cuz they don’t know the law either. (or they are afraid…….)
The Rule of Law does not matter to U.S. District Court Chief Judge Ann Aiken on the subject of judicial disqualification as we shall see.
But, first an example: -- Suppose that one of the parties before you as judge has recently contributed $3 million dollars to your judicial election campaign. Common sense makes the disqualification decision easy you say? The U.S. Supreme Court split 5-4 on the recently decided case of Caperton v. Massey, holding that the West Virginia Supreme Court justice should have recused himself from a case where he cast the deciding vote in favor of a party which spent $3 million in an independent campaign supporting that justice’s election to court.
Here are the basics on the issue of judicial disqualification (also referred to as judicial recusal):
- Basic Due Process, says that everyone is constitutionally entitled to a fair trial. Under this notion, it doesn't matter what the judge thinks; it is what public perception thinks. In the world of the judiciary, there must not even be an appearance of impropriety. "Disqualification is required if an objective observer would entertain reasonable questions about the judge's impartiality." Liteky v. U.S.,114 S Ct 1147, 1162 (1994)
- Do judges follow their own rules? No. U.S. Supreme Court Justice Scalia decided it was O.K. for him to go duck hunting with Vice President Cheney even though Cheney had a case pending in the U.S. Supreme Court at the very same time. Scalia is the author of the Liteky decision which sets the standard on the issue of when a judge should be disqualified. Local Judge Ann Aiken doesn't follow any part of the rule of law articulated in Liteky.
HERE IS THE DRILL: 1.) In the first instance, the judge is required to step aside if the judge knows or should have known of any reason why the judge could not be fair. No motion or other request is required by the parties or attorneys. 2.) Next, if a question of disqualification is raised, then the judge is required to refer that decision to an objective observer under the reasonable person standard. 3.) Finally, there are states which allow a preemptory removal challenge where parties or attorneys can ask to have a judge replaced without giving a reason. Normally, there is a limitation on when and how many preemptory recusals may be requested.
With me so far?
The courts and legislatures have made the protocol for recusal difficult enough without injecting a concept that does not have meaning into the mix. But, that is what they have done. As stated in #1 above, a judge should voluntarily step aside if they know they cannot be fair. As stated above in #2, bias or prejudice must ordinarily involve an extrajudicial factor. This means that the judge’s personal bias or prejudice must come from some source other than what the judge has done or learned in this case. NOT SO FAST PHILO!
What do you do if you know that judge just is not going to be fair to you from the get-go? This is a concept known as pervasive bias. The Liteky case allowed judicial disqualification where the judge’s “…deep-seated and unequivocal antagonism would render fair judgment impossible.” No extrajudicial source of bias or prejudice is required.
What??!! Chief Judge Aiken failed in case # 3:08-cv-00982-PK. She didn’t follow any aspect of the law:
1. Chief Judge Aiken failed to observe that a denial of fundamental due process may cause judicial disqualification.
2. Chief Judge Aiken was then required to refer the judicial bias question to a neutral observer. She didn’t do that.
3. Chief Judge Aiken's order says “Significantly, the alleged bias must derive from an 'extrajudicial source' to justify recusal”, quoting Liteky referred to above. NOT SO! As Liteky made clear there are other exceptions to the extrajudicial source doctrine which the good judge failed to consider or note. See #4 below.
4. Then Chief Judge Aiken failed to consider whether the trial judge's actions or lack thereof constituted pervasive bias which would render fair judgment impossible. Chief Judge Aiken was neither at the court proceedings nor did she examine the record, so how would she know if there was pervasive bias or not?
In short, our judges don’t follow the law at all. As observed by Jonathan Turley, do laws even matter anymore? If they don’t matter then why do we need judges? The system is broken.