Questioning the Constitutionality of Recess Appointments to the Federal Judiciary
By Howard J. Bashman
Monday, February 12, 2001

Cases that have recently come before the U.S. Supreme Court have focused attention on the recusal policies of appellate judges. Four months ago, Chief Justice Rehnquist explained that he would participate in deciding whether the Court should hear Microsoft's direct appeal of the government antitrust case even though his son, an attorney in private practice, was defending Microsoft in an arguably related antitrust class action. See Microsoft Corp. v. United States, 121 S. Ct. 25, 25-27 (2000) (statement of Rehnquist, C.J.). More recently, two other Justices received criticism from some quarters for participating in the presidential election cases out of Florida. One Justice's child was a partner at a law firm representing one of the candidates, and another Justice's spouse was working for an organization viewed by some as supporting one candidate's transition efforts.

Locally, some appellate judges have publicized aspects of their recusal policies, while others have not. In June of 2000, the U.S. Court of Appeals for the Third Circuit issued a notice that Circuit Judge Marjorie O. Rendell will recuse herself from all cases in which a party or its law firm has made contributions of at least $2,501 to the political campaign of her husband, former Philadelphia Mayor Edward G. Rendell. This recusal notice, available on the Third Circuit's Web site (http://www.ca3.uscourts.gov/), advises that the parties may agree to waive the disqualification. The notice also states that Judge Rendell will disqualify herself in cases in which a party or its law firm made a contribution to her husband's campaign of less than $2,501, if any party objects to her participation. According to the notice, the Third Circuit's Clerk's Office maintains a list of contributors for inspection.

Judge Rendell is not the only Third Circuit judge who is the spouse of a former politician. The Third Circuit's Web site does not indicate whether Circuit Judge Jane R. Roth follows a similar recusal policy with respect to parties and law firms that contributed to the campaign of former U.S. Senator William V. Roth, Jr. The identities of contributors to federal senatorial campaigns are available over the Internet from the Federal Election Commission (http://www.fec.gov/).

The federal statute governing the recusal of judges, 28 U.S.C. 455, describes two categories for disqualification. The first, contained in Section 455(a), states that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The parties to a case are allowed, following full disclosure of the basis for disqualification, to waive a judge's recusal if the ground for disqualification arises only under Section 455(a). See 28 U.S.C. 455(e).

The second situation in which recusal is necessary is described in Section 455(b). It requires a judge to recuse if, among other things, he or she: has actual bias or prejudice concerning a party; has a direct financial interest, however small, in a party; has served as lawyer in the matter in controversy while in private or governmental practice; or has a spouse or child who is a party, lawyer or witness in the proceeding. The parties cannot waive a judge's recusal pursuant to Section 455(b). See 28 U.S.C. 455(e).

Judge Rendell's recusal policy based on contributions to her husband's political campaign appears to arise under Section 455(a), because it is subject to waiver. Judge Roth (who joined the Third Circuit six years before Judge Rendell) may reasonably have concluded that contributions to her husband's political campaign should not be a reason for her automatic recusal. Federal judges could legitimately arrive at differing conclusions over whether contributions to a spouse's campaign for elective office should give rise to automatic recusal.

Pennsylvania state court judges face this issue even more directly, because they themselves must launch campaigns that raise money in order to be elected as judges. In the state court system, there is no definitive rule governing whether an appellate or trial court judge should recuse from hearing a case involving a contributor to the judge's campaign. See Kenis v. Perini Corp., 682 A.2d 845, 846-47 (Pa. Super. Ct. 1996) (noting that then-Judge Nigro recused himself from presiding over one case where a party was represented by an attorney who contributed $1,000 to the judge's campaign, but did not recuse in another case with the same attorney).

In March of 1998, the Special Commission to Limit Campaign Expenditures, which the Supreme Court of Pennsylvania appointed to examine judicial election campaigns, issued a report suggesting that judges be required to recuse if campaign contributions from a party or lawyer exceeded certain limits. The report also recommended limits on judicial campaign contributions and expenditures. Nearly three years after the Commission made these recommendations, none has become law. The problem that the Commission identified is likely only to get worse. The Philadelphia Inquirer recently observed that major party candidates for the soon-to-be-vacant seat on the Pennsylvania Supreme Court might need to raise $3 million to have a chance of being elected.

The Third Circuit and the Supreme Court of Pennsylvania share another recusal issue, because they both have former lead prosecutors among their ranks. Former Philadelphia District Attorney Ronald D. Castille is now a Justice of the Pennsylvania Supreme Court, and former U.S. Attorney for the District of New Jersey Samuel A. Alito, Jr. is now a Third Circuit Judge. Justice Castille has explained that he will not recuse from hearing cases that were prosecuted by the Philadelphia District Attorney's Office during his tenure there if he had no direct, personal involvement in the case. See Commonwealth v. Abu-Jamal, 720 A.2d 121, 123 (Pa. 1998) (Castille, J., denying motion for recusal).

Judge Alito's recusal policy involving cases handled in the U.S. Attorney's Office for the District of New Jersey during his tenure as U.S. Attorney is not easily discernable. The governing federal statute, 28 U.S.C. 455(b)(3), suggests that he should follow the same approach as Justice Castille. One complicating factor, however, is the Third Circuit's decision in United States v. DiPasquale, 864 F.2d 271, 277-79 (3d Cir. 1988), cert. denied, 492 U.S. 906 (1989).

In DiPasquale, the Third Circuit ruled that a supervisory Assistant U.S. Attorney need not recuse herself from presiding as district judge over matters in which she was not directly involved as a government attorney. But in dicta, the Third Circuit cited to two of its earlier decisions, from 1973 and 1947, holding that the individual serving as U.S. Attorney is "of counsel" in all prosecutions handled by his office and is thus recused from serving as judge in any such cases.

This dicta in DiPasquale appears to have overlooked that Congress, in 1974, amended 28 U.S.C. 455(b)(3), which had prohibited former government lawyers from serving as judges in cases in which they had "been of counsel," to prohibit them from serving as judges only in cases in which they had actually "participated as counsel." See United States v. Gipson, 835 F.2d 1323, 1325-26 (10th Cir.), cert. denied, 486 U.S. 1044 (1988); but see United States v. Arnpriester, 37 F.3d 466, 467-68 (9th Cir. 1994) (former U.S. Attorney is precluded from serving as judge in any prosecution initiated while he was in charge of the office). It is not clear whether the Third Circuit would adhere to the dicta from DiPasquale if this issue arose today.

Pennsylvania state recusal rules clearly differ from federal law on the issue of whether a judge may have a financial interest in a litigant. A federal judge who directly owns even one share of a company's stock is prohibited from hearing a case in which that company is a party. See 28 U.S.C. 455(b)(4), 455(d)(4). Canon 3(C)(1)(c) of Pennsylvania's Code of Judicial Conduct, by contrast, requires a Pennsylvania state court judge to recuse herself only if she has "a substantial financial interest . . . in a party to the proceeding . . . ."

David Sellers, a spokesman for the Administrative Office of the United States Courts, was quoted in September of 1999 as stating that the federal law mandating disqualification for financial conflict of interest "is very unforgiving." That remark came after a public interest group known as Community Rights Counsel issued a report concluding that eight federal appellate judges had taken part during 1997 in eighteen cases involving litigants in which the judges, their spouses or trusts they managed held stock. Among the judges were some of the federal judiciary's shining stars, including Third Circuit Chief Judge Edward R. Becker, Ninth Circuit Judge Alex Kozinski, First Circuit Judge Bruce M. Selya, and D.C. Circuit Judge Laurence H. Silberman.

The report spawned a front-page article in the September 13, 1999 issue of The Washington Post (http://washingtonpost.com/wp-srv/politics/feed/a53063-1999sep13.htm). It followed The Kansas City Star's publication in April of 1998 of a series of articles reporting that various federal judges in Kansas and Missouri had presided over cases involving parties in which the judges held a financial interest, in violation of the federal law requiring recusal (http://www.kcstar.com/judges/index.html).

The studies reported in The Washington Post and The Kansas City Star were performed using the financial disclosure forms that all federal judges must file annually pursuant to the Ethics in Government Act of 1978. See Duplantier v. United States, 606 F.2d 654 (5th Cir. 1979) (upholding constitutionality of the Act's disclosure requirements as applicable to federal judges), cert. denied, 449 U.S. 1076 (1981). According to The Kansas City Star, only seventeen law firms sought to review the financial disclosure reports of federal judges in 1997, perhaps because the judges whose reports are requested receive notice of the requester's name, address, occupation and employer.

In September of 1999, the Web site APBnews.com requested copies of the 1998 financial disclosure reports for all 1,600 federal judges in order to post the reports on the Internet. Three months later, the judge chairing the Financial Disclosure Committee of the Judicial Conference of the United States denied the request, fearing that online disclosure could result in physical harm to the judges and their families. This led APBnews.com to sue the Judicial Conference on the theory that refusing to release the reports to an online news organization, after releasing them to other organizations, violated the First Amendment.

On February 15, 2000, Chief Justice Rehnquist issued a memorandum to the Judicial Conference urging release of the reports. On March 14, 2000, the Judicial Conference voted sixteen to eight to release the reports to APBnews.com, but federal judges would first be given an opportunity to redact any information that could pose a safety threat to themselves or their families.

In July of 2000, APBnews.com filed for bankruptcy. Two months later the company was sold to a new owner. It is unclear whether APBnews.com will complete the online posting of all federal judges' financial disclosure reports. The only disclosure forms now available from APBnews.com are the forms of all nine U.S. Supreme Court Justices and the forms of fifteen federal circuit and district judges whose last names begin with "A." (http://www.apbnews.com/cjsystem/judges/search.html). The lone Third Circuit Judge whose financial report appears online there is Senior Circuit Judge Ruggero J. Aldisert.

Someday the financial disclosure reports of all federal judges likely will appear online (perhaps at the Web site of The Washington Post, which itself has recently requested all such reports). Maybe then the recusal oversights reflected in the studies of the Community Rights Counsel and The Kansas City Star will be a thing of the past, because litigants will be almost as well situated as federal judges to determine whether recusal due to a financial conflict of interest is required.


This reprinted with permission from the February 12, 2001 issue of The Legal Intelligencer 2001 NLP IP Company.

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