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WASHINGTON – Members of a House Judiciary subcommittee searched for ways to curb federal judges who refuse to step aside in cases where a conflict of interest is apparent, saying such refusals deny litigants a fair chance in court.

The hearing sought to address judicial conflicts of interest in federal courts to avoid circumstances similar to the state court recusal case Caperton v. A. T. Massey Coal Co., decided by the U.S. Supreme Court earlier this year.

Currently, a federal judge – whether on the trial, appellate or Supreme Court level – has sole discretion over whether to recuse himself or herself.

“The responsibility of a judge to recuse himself or herself for conflicts of interest must be taken seriously,” said Rep. Hank Johnson, D-Ga., chairman of the Subcommittee on Courts and Competition Policy.

Lawmakers said they were mindful that the separation of powers doctrine limits what Congress can do to address judicial recusals.

“We are not here to poke a co-equal branch of government in the eye,” said Rep. Howard Coble, R-N.C. “[But] that doesn’t mean that federal judges are entitled to a free pass in life.”

Coble admitted a written statement from Michigan Supreme Court Justice Robert Young. That court voted in November to toughen its judicial recusal standard, which allows a justice’s decision not to recuse himself or herself to be reviewed by the court’s other justices.

The hearing focused on reforms Congress and the U.S. Judicial Conference could make for the federal bench, as Congress has no control over state court recusal rules.

Charles Geyh, a professor at the Maurer School of Law at Indiana University in Bloomington, Ind., said the Court’s ruling in Caperton – which held that a judge should have stepped down from an appeal involving a high-dollar campaign contributor -provides guidance to federal lawmakers even though it doesn’t bind federal judges.

“[Caperton] doesn’t apply to federal courts, [but] it does under score the need for judicial impartiality,” Geyh said.

Geyh and other witnesses proposed a rule that would allow recusal motions rejected by one judge to be reviewed by another judge. Geyh called the proposal “a simple solution.”

Norman Reimer, executive director of the National Association of Criminal Defense Lawyers (NACDL) in Washington, said the existence of judicial bias in criminal cases is particularly concerning, especially in cases where elected state judges have campaigned on a tough-on-crime ticket.

“Imagine what it is like [for a defendant] to walk into a courtroom and know what the judge had promised to stop putting criminals on probation,” Reimer said. “The road kill here is not just the rights of the accused. [The] true victim is the perception of fairness.”

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com

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