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EXAMINING THE STATE OF JUDICIAL 

RECUSALS AFTER CAPERTON v. A.T. MASSEY 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COURTS AND 

COMPETITION POLICY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

DECEMBER 10, 2009 

Serial No. 111–118 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON COURTS AND COMPETITION POLICY

HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia, Chairman 

JOHN CONYERS, JR., Michigan 

RICK BOUCHER, Virginia 

ROBERT WEXLER, Florida 

CHARLES A. GONZALEZ, Texas 

SHEILA JACKSON LEE, Texas 

MELVIN L. WATT, North Carolina 

MIKE QUIGLEY, Illinois 

DANIEL MAFFEI, New York 

HOWARD COBLE, North Carolina 

JASON CHAFFETZ, Utah 

BOB GOODLATTE, Virginia 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

DARRELL ISSA, California 

GREGG HARPER, Mississippi 

CHRISTAL SHEPPARD, Chief Counsel 

BLAINE MERRITT, Minority Counsel 

(III) 

C O N T E N T S 

DECEMBER 10, 2009 

Page 

OPENING STATEMENTS 

The Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress 

from the State of Georgia, and Chairman, Subcommittee on Courts and 

Competition Policy ............................................................................................... 1 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Ranking Member, Subcommittee on Courts and 

Competition Policy ............................................................................................... 2 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on Courts and Competition Policy ............................................. 4 

WITNESSES 

The Honorable M. Margaret McKeown, Judge, United States Court of Appeals, Ninth Circuit District, San Diego, CA 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 8 

Mr. Charles G. Geyh, Associate Dean of Research, John F. Kimberling Professor of Law, Indiana University, Maurer School of Law, Bloomington, 

IN 

Oral Testimony ..................................................................................................... 21 

Prepared Statement ............................................................................................. 23 

Mr. Richard E. Flamm, Author of ‘‘Judicial Disqualification: Recusal and 

Disqualification of Judges;’’ Conflicts of Interest and Law Firm Disqualification, Berkeley, CA 

Oral Testimony ..................................................................................................... 38 

Prepared Statement ............................................................................................. 40 

Mr. Eugene Volokh, Gary T. Schwartz Professor of Law, University of California, Los Angeles, CA 

Oral Testimony ..................................................................................................... 50 

Prepared Statement ............................................................................................. 53 

Mr. Norman L. Reimer, Executive Director, National Association of Criminal 

Defense Lawyers, Washington, DC 

Oral Testimony ..................................................................................................... 57 

Prepared Statement ............................................................................................. 60 

Mr. Arthur D. Hellman, Professor of Law, University of Pittsburgh, Sally 

Ann Semenko Endowed Chair, Pittsburgh, PA 

Oral Testimony ..................................................................................................... 66 

Prepared Statement ............................................................................................. 68 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 111 

(1) 

EXAMINING THE STATE OF JUDICIAL 

RECUSALS AFTER CAPERTON v. A.T. MASSEY 

THURSDAY, DECEMBER 10, 2009 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS AND

COMPETITION POLICY

COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 1:05 p.m., in room 

2237, Rayburn House Office Building, the Honorable Henry C. 

‘‘Hank’’ Johnson, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Johnson, Conyers, Quigley, Jackson 

Lee, Coble, and Chaffetz. 

Staff Present: (Majority) Christal Sheppard, Subcommittee Chief 

Counsel; Elisabeth Stein, Counsel; Rosalind Jackson, Professional 

Staff Member; and (Minority) Blaine Merritt, Counsel. 

Mr. JOHNSON. We are officially starting this Subcommittee hearing. 

Without objection, the Chair will be authorized to declare a recess of the hearing, and I will now recognize myself for a short 

statement. 

I would like to welcome everyone to the hearing today and offer 

my thanks to the panel members for being here with us. 

I am holding this hearing because the issue of judicial recusal is 

extremely important to me. As a former magistrate judge and as 

Chair of this Subcommittee, I firmly believe that we must maintain 

the integrity of our judiciary. Judicial misconduct, particularly in 

the form of a judge to recuse him or herself when there is a conflict 

of interest, must be taken seriously. Our Federal judges go through 

an extensive process in the Senate to make sure that they are fit 

to hold a lifetime judicial appointment, and I believe that most 

judges genuinely do their best to be fair and impartial in every 

case and appropriately recuse themselves when there exists an actual bias or the appearance of bias. As such, Congress should take 

care not to impose unnecessary or overly burdensome procedural or 

substantive burdens on our already overworked judicial system. 

However, the limited instances where judges do not recuse themselves when there is an appearance of bias creates a tension between the need for an independent judiciary and the need for some 

Federal oversight to ensure that cases are decided fairly. 

There have been three recent cases which highlight the problem 

with judicial recusal. The first is the Siegelman case. Siegelman’s 

codefendant, Scrushy, claimed that he was entitled to a new trial 

2 

because the district court judge should have disclosed his 

extrajudicial income from business contacts with the United States 

Government. The court denied Scrushy’s motion. The 11th circuit 

on appeal held that Scrushy’s claim held no merit. However, the 

court did not explain why the motion was denied. 

This was a highly political case and it raises one of the concerns 

that I hope our witnesses will address today, and that is: Should 

the court be required to specifically explain why a motion for 

recusal was denied? 

In another case, Georgia State senator Charles Walker, a highly 

respected former newspaper publisher and entrepreneur, as well as 

the first African American chosen as Senate majority leader in 

Georgia, was charged with mail fraud, tax fraud and conspiracy regarding his prior publishing business. The indictment filed against 

Mr. Walker may have been based on politics instead of actual 

wrongdoing. Mr. Walker was also assigned a judge who had close 

ties to the principal competitor of Mr. Walker’s newspaper business. Mr. Walker did not submit a request that the judge recuse 

himself. However, after his trial he maintained that his defense 

counsel should have moved to disqualify. 

The final recusal issue I want to talk about today is Judge G. 

Thomas Porteous, a district court judge who is currently under consideration by the Impeachment Task Force of the House Judiciary 

Committee on which I sit. 

Judge Porteous failed to recuse himself from cases where he had 

financial relationships with several attorneys who appeared before 

him. Now, the issue of whether Judge Porteous behaved improperly 

is still something the Task Force is considering. However, if the 

task force finds that Judge Porteous should have recused himself 

in those cases, it certainly highlights the legitimate concerns held 

by many that judges might not be the best people to determine 

whether they should recuse themselves from a case. 

So what should Congress do? Clearly a balance must be maintained between the need for transparency in judicial recusals, and 

the need for a judge’s private life to be protected. However, the failure of a judge to recuse himself or herself when the outcome leads 

to a miscarriage of justice, is one that must be taken very seriously. There have been some suggested procedural reforms for judicial recusal laws. One would be to allow appeals. Another would require judges to explain their disqualification decision. And yet another would be to allow disqualification motions to be decided by 

other judges. 

Some States have already acted to amend their judicial recusal 

laws to allow for more transparency. However, the Federal recusal 

laws continue to lag behind. I look forward to the testimony from 

today’s witnesses that will address whether reform to judicial 

recusal laws is ripe for review; and if it is, what steps Congress can 

and should take to enact substantive and procedural reforms to judicial recusal laws. 

I now recognize my colleague, Mr. Coble, the Ranking Member 

of this Subcommittee, for his opening remarks. 

Mr. COBLE. Thank you, Mr. Chairman. I appreciate you having 

called this hearing. It appears we have a formidable panel from 

whom we will hear subsequently. 

3 

There has always been inherent tension among the three 

branches of our Federal Government. The founders intended that 

no one branch would dominate the other two and that each branch 

would guard its own constitutional territory from the other two. 

This system of checks and balances has done a wonderful job of defending civil liberties, promoting national security, and expressing 

the popular will through a deliberative legislative process. 

The inevitable by-product of this construct is institutional tension, especially when one branch ‘‘checks’’ the other. But it is natural. And, in fact, it is a sign of civic health. 

This hearing wasn’t convened to create more tension than already exists. We are not here to poke a coequal branch of government in the eye. All Members of the Courts Subcommittee respect 

the work of the judiciary, even if we don’t always agree with their 

work product in every instance. Following the founder’s example, 

we appreciate the importance of judicial independence. Article 3 

judges should be insulated from political pressure to render unbiased opinions, and that is why they enjoy life tenure. However, this 

doesn’t mean that Federal judges are entitled to a free pass in life. 

We have a constitutional obligation to conduct oversight on judicial operations, just as the judiciary is charged with reviewing our 

statutory handiwork for legal defects. But short of impeachment, a 

congressional prerogative rarely exercised, there is little we can do 

to discipline judges for ethical lapses. Still, we need to work with 

the judiciary to identify areas of concern, if they exist, and to develop corrective responses when appropriate. As a former court 

Subcommittee Chairman and a long-time Member of this House 

Judiciary Committee, I have participated in previous oversight efforts to review the state of judicial ethics and behavior. Much of 

this work culminated in a rewriting of the Judicial Conduct and 

Disability Act of 1980, the statutory mechanism by which individuals may file complaints against Federal judges. 

While I am sometimes plagued by senior moments, Mr. Chairman, I do recall that this matter peripherally touched on the matter of recusals, with some arguing that recusal statutes were dead 

law. In other words, judges weren’t likely to recuse themselves 

from cases, and lawyers were too frightened or uneasy to ask them 

to do so. 

And if memory further serves, part of this Subcommittee’s impeachment investigation of District Judge Manny Real during the 

109th Congress involved a recusal issue. 

No open-minded litigant, in my opinion, believes that he or she 

is entitled to win in Federal Court; but, every litigant expects and 

deserves to be treated fairly. At minimum, this means the presiding judge must be free of bias or prejudice toward any litigant. 

If this isn’t the case, the judge, I believe, should step aside. 

We have a balanced panel of witnesses who can speak to this 

issue in great detail, and we are eager to hear from them. 

I emphasize that I am not out to get the judiciary. I don’t know 

if the complaints about the state of recusal jurisprudence are anecdotal or genuine. That is why we are having this hearing, and I 

look forward to participating. 

Mr. Chairman, at this time I would like to make a unanimous 

consent request that we enter into the record a statement and 

4 

other information submitted by Michigan Supreme Court Justice 

Robert Young about his State’s experience with their recusal laws. 

Mr. JOHNSON. Without objection. 

Mr. COBLE. I yield back the balance of my time. 

Mr. JOHNSON. I thank Ranking Member Coble. 

Next I will recognize Mr. John Conyers, a distinguished Member 

of this Subcommittee and also the Chairman of the full Judiciary 

Committee. 

Mr. CONYERS. Thank you, Chairman Johnson. 

Welcome judges, panelists. This is almost like a bright line. 

There are two schools of legal thought here; brilliance all over the 

place, but still a bright line. I don’t want to reduce this to simplistic terms, old school versus new school or retrograde versus 

progress. But goodness, gracious, here is a problem begging for consideration. We have distinguished members of the court and teachers of law saying nothing wrong; accidents will happen. You don’t 

have to be so perfect about all this. 

A judge in Alabama, not a citizen in Alabama, a judge in Alabama, that goes up to the 11th circuit and for no reason, denies the 

disqualification order. 

Why? 

We don’t choose to give you any reasons why. You don’t need to 

know why. Well, it may be some of your business, but it is none 

of your concern. 

This is the Governor. 

And, so in instance after instance—this is what has brought me 

to love and revere the Committee on the Judiciary. In the Congress—we get this opportunity that very few others do. Yes, inside 

of the bar associations there will be brilliant discussion back and 

forth about it; but here in this country, the democratic society that 

is held up, the constitutional democracy that is written and spoken 

about and emulated and practiced and sought after, locks up more 

people than any other place in the world. 

What causes that? Well, don’t get over-excited about that, Chairman, it is just the way that the cookie crumbles. You uphold law 

and order. 

What about transparency? 

We, Federal jurists, don’t have to tell you why we have ruled 

thus and so. Do you know how much clogging of the courts and how 

much backing up if judges had to explain everything they did? Go 

read the precedents. Go back and take a refresher course, but don’t 

bother us with having to explain why a Governor of one of the several States can be denied relief without any explanation whatsoever. 

That offends me. And it is only a small part of the problem that 

brings us here today. There are so many areas that we need to reexamine, not to help somebody or put your thumb on the scale, but 

just to bring this thing of simple justice home. 

Do you know how many—and I conclude on this—do you know 

how many people in this country feel that they got really taken 

going through a court process? That the thing was against them 

from the beginning? I know enough to feel disturbed about this 

question of recusal that Chairman Johnson has put on the table 

this afternoon. I thank him for his efforts. 

5 

Mr. JOHNSON. You are quite welcome, Mr. Chairman. Thank you 

for your statement. 

Without objection, other Members’ opening statements will be included in the record. 

Now I am pleased to introduce the witnesses for today’s hearing. 

Our first witness is the Honorable M. Margaret McKeown from 

the United States Court of Appeals for the ninth circuit where she 

has served since 1998. Judge McKeown has published and spoken 

extensively on the topic of judicial ethics. She is also the chair of 

the Judicial Conference of the United States Code of Conduct Committee, and we welcome her to this hearing. 

Our second witness is Charles Geyh who is the Associate Dean 

of Research, John F. Kimberling Professor of Law, Indiana University, Maurer School of Law. Professor Geyh also serves as a director and consultant of the American Bar Association Judicial Disqualification Project. He is widely known for his scholarship in addressing the Federal courts and judicial recusal laws. Welcome, sir. 

Our third witness is Richard Flamm. Mr. Flamm is an attorney 

specializing in judicial ethics and judicial recusal. He is an expert 

in that area. He wrote the leading treatise in this area called ‘‘Judicial Disqualification: Recusal and Disqualification of Judges.’’ 

Welcome, Mr. Flamm. 

Our fourth witness is Eugene Volokh. Professor Volokh teaches 

constitutional law, criminal law, and tort law at the UCLA School 

of Law. Before going to UCLA, he clerked for Justice Sandra Day 

O’Conner on the U.S. Supreme Court and for Alex Kozinski for the 

U.S. Court of Appeals for the 9th Circuit. Professor Volokh was one 

of the attorneys for A.T. Massey Coal Company in Caperton v. A.T. 

Massey Coal Company. We welcome him here today. 

Our fifth witness is Norman L. Reimer. Mr. Reimer is the executive director of the National Association of Criminal Defense Lawyers, which is an organization dedicated to ensuring justice and 

due process for all. Prior to serving in that position, Mr. Reimer 

practiced law for 28 years, most recently at Gould, Reimer, Walsh, 

Goffin, Cohn, LLP. Mr. Reimer is active in judicial recusal issues 

and assisted in writing the amicus brief in Caperton v. Massey. 

Welcome, Mr. Reimer. 

Last is our sixth witness, Mr. Arthur D. Hellman, who is a professor of law at the University of Pittsburgh School of Law. Mr. 

Hellman is a dedicated scholar in the field of judicial ethics and 

has written several articles on the point. He has testified before 

both the House and the Senate Judiciary Committees on Federal 

court issues, and assisted with the Judicial Improvements Act of 

2002. Welcome, Professor. 

Thank you all for your willingness to come and participate in today’s hearing. Without objection, your written statements will be 

placed into the record. We ask that you limit your oral remarks to 

5 minutes. You will note that we have a lighting system that starts 

with a green light, and after 4 minutes it turns yellow, and then 

red at 5 minutes. After each witness has presented his or her testimony, the Subcommittee Members will be permitted to ask questions subject to the 5-minute limit. 

Mr. JOHNSON. Judge McKeown, will you now proceed with your 

testimony. 

6 

TESTIMONY OF THE HONORABLE M. MARGARET McKEOWN, 

JUDGE, UNITED STATES COURT OF APPEALS, NINTH CIRCUIT DISTRICT, SAN DIEGO, CA 

Judge MCKEOWN. Thank you, Chairman Johnson, Mr. Coble and 

Members of the Committee. I appreciate being invited to testify 

here today. I am the chair of the Judicial Conference Committee 

on Codes of Conduct, which is the Federal judges ethics committee 

and I appear here on behalf of the Judicial Conference. There are 

three points I would like to touch on in my testimony this afternoon: first, the recusal standards applicable to Federal judges; second, the extensive framework by which the judiciary endeavors to 

abide by these standards; and, finally, the role that our committee 

plays in advising and educating judges. 

Ethics is a critical part of the fabric of the Federal judiciary, and 

impartiality lies at the heart of our work. 

Judicial recusal is formally governed by two key statutes, 28 

USC section 144 and section 455(a). In addition, Federal judges 

abide by the Ethics in Government Act, gift regulations, and other 

statutes, and the Judicial Conference imposes further constraints 

through the judicial Code of Conduct. The language in your Federal 

statute 455 is also mirrored in our Code of Conduct. 

There are five specific situations in which recusal is mandatory 

and may not be waived. Those are detailed in my written testimony. 

Let me just add one key note here concerning disqualifying financial interests. In the Federal system, unlike in some State systems, there is no de minimis exception for recusal based on a financial interest. Even owning a single share of stock in a party mandates recusal, and Federal judges are not permitted to put their assets into a blind trust. 

In addition to the mandatory recusal situations, there is one important other mandatory recusal, and that is whenever a judge’s 

impartiality might reasonably be questioned. 

These statutes and the Code are actually part of a much broader 

framework that the judiciary has developed both to promote transparency and to provide multiple checkpoints in the recusal process. 

Several institutional safeguards operate together to ensure that 

judges have the tools they need to follow the recusal statutes and 

that judges who have real conflicts not hear those cases. 

They begin with a system that randomly assigns cases to judges 

within a particular court. And at the outset and throughout the entire proceeding, the judge has an obligation to assess whether disqualification is required. Guarding against conflict of interest is of 

paramount importance to us. 

Besides random assignment, the Judicial Conference requires all 

judges to use an electronic conflict screening system. This ensures 

that judges do not inadvertently fail to recuse based on financial 

interest in a party. In addition, all judges file detailed annual disclosure reports, which I know Members of Congress are also familiar with in their roles, and we also disclose our attendance at publicly funded educational seminars, and these reports are publicly 

available. 

The safeguards are intended to minimize conflicts before they 

occur and to avoid the possible need for recusal motions. Beyond 

7 

these systemic safeguards, there is, of course, the litigation process 

which permits any party to file a recusal motion, and appellate review provides a further avenue of recourse. 

Finally, the Judicial Conduct and Disability Act, which I believe 

was referenced here by Congressman Coble, and the procedures 

under that act may be available to provide a check on flagrant violations of the recusal law. The Judicial Conference, through the 

Breyer Commission, has recently strengthened the procedures 

under that act for addressing complaints against judges. 

Finally, let me turn to the role of our committee. Basically we 

are an advisory body, an ethics service center, and a sounding 

board to help judges try to comply with this wide array of ethical 

principles. We are actually often called the ‘‘Dear Abby Committee,’’ and we give confidential advice to judges. Our goal is to 

make sure that ethics guidelines for judges protect the fairness and 

impartiality of the judiciary while striking the right balance with 

judicial independence. We have more than 80 publicly available advisory opinions, many of them on the points of recusal, and our 

recusal advice goes well beyond the Code and the statute. 

Also, a judge who needs ethics advice, in addition to doing his 

or her own research, can come to the committee for informal advice; and if informal advice doesn’t suffice, we provide written opinions, confidential letters of advice. We respond to more than a 

thousand informal inquiries every year. We issue over a hundred 

formal opinions, and much more informal advice is offered through 

our education program. 

A key function of our committee is education for judges, law 

clerks and staff, and in the last few years we have greatly increased that education outreach. We offer a number of printed publications for the judges, Internet Training, and also in-person training. 

In conclusion, both the judges and the public have a broad array 

of tools and a transparent environment to ensure the fair and impartial adjudication of cases, while maintaining the independence 

of the judiciary needed to uphold our laws. We regard ethics as a 

very serious matter. 

I appreciate appearing here today. I welcome your questions. 

Mr. JOHNSON. Thank you, Judge McKeown. 

[The prepared statement of Judge McKeown follows:] 

8 

PREPARED STATEMENT OF THE HONORABLE M. MARGAREET MCKEOWN


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Mr. JOHNSON. Professor Geyh. 

TESTIMONY OF CHARLES G. GEYH, ASSOCIATE DEAN OF RESEARCH, JOHN F. KIMBERLING PROFESSOR OF LAW, INDIANA UNIVERSITY, MAURER SCHOOL OF LAW, BLOOMINGTON, IN 

Mr. GEYH. Thank you, Mr. Chairman, for the opportunity to be 

here today. It is not just a privilege but a pleasure to appear before 

the Committee. I served as counsel many years ago under Robert 

Kastenmeier. And as former counsel, I would be remiss not to 

thank Kirsten Zewers for helping out and organizing me for this 

event. 

I am testifying on my own behalf here and not on behalf of the 

American Bar Association and other organizations with whom I 

have worked on this matter. 

The Supreme Court’s decision in Caperton, which really is part 

of the title of this hearing, does not apply to the Federal courts directly. It was a case that concerned a State judge, and it was decided under circumstances unique to States that elect their judges. 

The thing about Caperton, though, is it does underscore the importance of impartial justice and the role disqualification plays in preserving it, and in that sense is a good launching point for this hearing. 

My starting point is to say, on the whole, I do think that we have 

an excellent Federal judiciary, and that it is committed to promoting impartial justice. And I do think that on the whole, section 

455, which has been 200 years in the making, has served the judiciary pretty well. That doesn’t mean, though, that there aren’t 

problems. And in my testimony I allude to several of them. A couple of them I will reserve for my written testimony, and focus on 

one here which has to do with the judicial disqualification procedure and the issue of judges deciding their own disqualification motions. 

Section 455, as Judge McKeown testified, indicates first that a 

judge must disqualify himself whenever his impartiality might reasonably be questioned, and then goes on to enumerate a series of 

rather specific instances when judicial disqualification is necessary. 

It is extremely rare in my review for a judge to willfully refuse 

to disqualify himself under circumstances in which the judge 

knows he must. On the whole, I think our judges are too committed 

to impartial justice for any but the isolated bad apple to do that; 

and you refer to Judge Porteous, and he may be among them. Ironically, however, I think it is precisely, or at least partly, because 

our judges are so committed to impartial justice that we have a 

problem. 

Let me explain. Judges take an oath to be impartial. Judges ascribe to a code of conduct in which they are directed to act at all 

times in a manner that promotes, that preserves impartial justice. 

They are asked also to follow a code that says you should avoid 

even the appearance of impropriety, which means even the appearance, frankly, of partiality. 

Now that being said, when a judge is called upon in the context 

of a disqualification proceeding to disqualify herself because she is 

biased, or because she is perceived to be biased, she is being asked 

22 

to admit that she is not impartial, that she has created a perception problem that her oath and the code tell her she shouldn’t be 

creating. In other words, she is being accused implicitly of performing in a way that is suboptimal. 

For that reason I think, understandably, judges who are deeply 

committed to impartial justice are predisposed to think that they 

can be impartial and they cannot reasonably be perceived otherwise. And it is not at all uncommon for lawyers in the field to say 

that the judges take umbrage when the judge stands accused of 

being less than impartial, precisely because I think judges try very 

hard to be. 

Now, when a judge is called upon in the circumstances, against 

this backdrop, it is troubling to me that the standard operating 

procedure in disqualification proceedings is for the judge whose disqualification is being challenged to be the judge who decides her 

own fitness to sit. 

First, it strikes me as unfair to the judge in question to ask her 

to second-guess her own impartiality and her own commitment to 

preserving the appearance of impartial justice. 

Second, it is unrealistic, it seems to me, to expect anyone to be 

able to candidly assess the extent of their own bias. Research in 

the psychology field underscores this, the complexity of that. It is 

also hard to expect someone to understand how they would reasonably be perceived by another, which is equally complicated. 

Third and finally, when a party is concerned that a judge appears to be too biased to be fair, which is really what is going on 

in disqualification proceedings, it is odd in the extreme to have 

that issue resolved by the very judge who is allegedly too biased 

to be fair. Having a judge grade their own paper in this way is 

bound to create a perception problem, which strikes me as being 

uniquely problematic for a judiciary which is committed to the appearance of impartial justice. 

To me, the solution is one that many States have adopted, which 

is to adopt what I would suggest to be a two-part process that 

could be embedded in a procedural section of section 455. Part one 

says; let the judge receive the motion initially and make an initial 

determination as to whether disqualification is in order. Oftentimes, that will come very quickly. The judge will be unaware that 

one of the many defendants is a party with respect to whom a relative is on the board of directors and will quickly step aside. 

If, however, the judge concludes that disqualification is unwarranted, then the simple solution, it seems to me, is to send the 

matter to another judge. And I would contend that many of the situations in which you second-guess this qualification determinations, could be resolved by returning the matter to a different judge 

that is not going to be subject to these suspicions. 

Thank you. 

Mr. JOHNSON. Thank you, Professor Geyh. 

[The prepared statement of Mr. Geyh follows:] 

23 

PREPARED STATEMENT OF CHARLES G. GEYH


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Mr. JOHNSON. Now we will hear from Mr. Flamm. 

TESTIMONY OF RICHARD E. FLAMM, AUTHOR OF ‘‘JUDICIAL 

DISQUALIFICATION: RECUSAL AND DISQUALIFICATION OF 

JUDGES;’’ CONFLICTS OF INTEREST AND LAW FIRM DISQUALIFICATION, BERKELEY, CA 

Mr. FLAMM. Thank you very much, Chairman Johnson. 

Chairman Johnson, Ranking Member Coble, other Committee 

Members, I am very honored and pleased to be here to talk about 

a subject that is very interesting to me. My interest in this field 

is twofold. I have the academic interest that you mentioned. I 

wrote the book. In the process of writing that book, for better or 

worse, I probably had occasion to review more judicial disqualification precedents than probably anybody else on the planet. 

But I also have a practical interest in this field as well. I have 

acted as a consultant or expert witness in dozens of disqualification 

proceedings, and in that capacity I had occasion to experience some 

of the concerns that Chairman Conyers alluded to, which is that 

not all litigants are very happy with the way that the system 

works. And in fact, a great many litigants don’t believe that they 

are getting justice when they go before American courts. 

But I didn’t come with an ox to gore or with any kind of agenda. 

I was asked to testify, and I said I would, because I thought with 

my background I might be able to provide a valuable resource to 

the Committee. My first step in that process was to provide you 

with some written testimony in which I basically tried to outline 

what the status of Federal recusal law is at this point and how it 

got to be that way. 

I don’t know if you have had a chance to look at it yet, but Chairman Conyers characterized this panel as brilliant scholars who 

think there is nothing wrong with the law. I don’t know if the first 

half of that statement applies to me, but I know the second one 

doesn’t. I seriously believe there is a good deal that is wrong with 

Federal judicial disqualification law as it exists today. 

I talked about a few problems in my testimony. I didn’t go into 

great depth. The main thing I alluded to was one of the two statutes that Judge McKeown referred to, 28 USC section 144 which 

is on the books today, along with section 455. So currently, the 

Federal Government has two different Federal disqualification statutes. 

Nobody, including the courts, seem to understand how they are 

supposed to interact between each other, and the 3problem is only 

partly mooted by the fact that the Supreme Court decided in 1921 

not to enforce section 144 in the manner that Congress had intended. 

I was told that one of the issues that might be up for discussion 

by this Committee is the possibility of enacting what is known in 

jurisdictions that have a preemptory challenge or preemptory disqualification statute; 28 USC section 144, as enacted by Congress 

in 1911, was intended to be exactly that, but the Supreme Court 

refused to enforce it in that manner. And as I think Professor Geyh 

has said, it has now come to be thought of as dead law by a lot 

of scholars. 

39 

I had several other things to say that I won’t have time to say, 

so instead of doing that, I would like to address a couple of the 

other issues that Chairman Johnson and Chairman Conyers 

brought up. 

First, should a court explain its reasons for why or why not it 

has chosen to recuse itself? I think the answer to that is obvious; 

but one of the problems that is caused by not doing it may not be 

so obvious. 

I have a very lengthy book on judicial disqualification; 95 percent 

or more of all of the precedents in there are cases in which disqualification motions were denied. The reason that is, is because 

judges do recuse themselves in a great many circumstances. A lot 

of judges are very conscientious about doing so. But very few 

judges who recuse themselves take the time to write an opinion explaining why they did so. In contrast, many judges who don’t disqualify themselves write lengthy opinions explaining why they are 

not disqualifying themselves. 

As a result, another problem we have with the law is people who 

are trying to figure out what the law on disqualification is may get 

a skewed idea of what they should expect when they go into court. 

Let me say one last thing in the small amount of time allotted. 

Ranking Member Coble alluded to Robert Young’s submission, 

and I haven’t seen it, obviously, on the Michigan experience with 

judicial disqualification. 

The Michigan experience has indeed been very interesting. In 

2003, a new justice on the court, Justice Weaver, was asked to 

recuse herself in a case, but was told that judges aren’t supposed 

to explain. It is an unwritten tradition of the Michigan Supreme 

Court that judges don’t explain the reasons why. 

She researched it and came to the conclusion that that was false, 

and what ensued has been a donnybrook in the Michigan courts 

that has lasted for years about whether judges do have the requirement. And that is something we can talk about if you have further 

questions. 

Thank you. 

Mr. JOHNSON. Thank you, sir. 

[The prepared statement of Richard E. Flamm follows:] 

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Mr. JOHNSON. I don’t know if the panel heard those rings going 

off. It is a call for us to go do what we are supposed to do, which 

is to press that button yes, no, or present. We have about 10 minutes left on the votes. I think it would be wise for us to knock off 

here. We will recess and come back and have the rest of the opening statements. 


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We have three votes and I would suppose we will be back in 

about half an hour. 

Mr. CONYERS. Mr. Chairman, perhaps with a group as distinguished as this, many of these problems can be resolved by the 

time we come back from the floor. 

Mr. JOHNSON. I am sure that many would fully appreciate 

promptness, a prompt decision on dealing with such an important 

area. 

[Recess.] 

Mr. JOHNSON. Okay, ladies and gentlemen, we are back in session. The next witness that we will hear from is Mr. Volokh. 

TESTIMONY OF EUGENE VOLOKH, GARY T. SCHWARTZ PROFESSOR OF LAW, UNIVERSITY OF CALIFORNIA, LOS ANGELES, CA 

Mr. VOLOKH. Thank you very much for inviting me to testify. It 

is a great honor and privilege to be here. Much of my recent interest in this area stems from my having participated as a lawyer in 

the Caperton v. A.T. Massey Coal Company case, but I am not here 

as a lawyer for any party. I am expressing solely my own view as 

an academic. In any event, since the case, after the Supreme Court, 

has returned to the State court system, nothing that Congress is 

likely to do in this area will have any bearing on that case. 

Mr. JOHNSON. Let me stop you and ask you whether or not your 

mike is on. 

Mr. VOLOKH. The green light is on, but maybe I am not speaking 

into it. Is this any better or—— 

Mr. JOHNSON. No, it is not. But that is not your—— 

Mr. VOLOKH. Is this any better? 

Mr. JOHNSON. No, but go ahead. Just try to speak a little louder. 

Mr. VOLOKH. My main interest in this area has to do with the 

constitutional standards having to do with recusal, which, of 

course, are a very small part of the recusal picture. As a result I 

also have some thoughts on the substantive rules of recusal. 

Obviously the procedural matters as we have heard discussed 

here are also very important. On those, I would largely defer to my 

colleagues who are much more knowledgeable on this. Also in a 

discussion with counsel, I suggest that it might speak more broadly 

about some of the issues that this raises. So I want to just take 

a big-picture view of appearance of impropriety standards and the 

rules having to do with recusal. I hope that this is helpful but perhaps it is too big a picture view. 

It is often tempting for discussions of this subject to turn quickly 

to appearance of impropriety standards or, in fact, to follow the 

Federal statute standards that focus on when a judge’s impartiality 

might reasonably be questioned and saying that whenever that 

might happen, when the impartiality might reasonably be questioned, the judge ought to recuse himself. 

I want to suggest that the matter is considerably more complex 

than that. It is complex because judges are people, and are people 

who come to the court, and who while they are on the court acquire 

various things. They acquire, for example, political connections. 

Generally, to be appointed a Federal judge, one needs the backing—obviously one needs to be appointed by a President—one 

51 

needs the backing of State senators. One often gets into that position as a result of an extensive career, much of it in with political 

connections. 

One also acquires opinions and past statements often about controversial issues. One acquires friends and former colleagues. So, 

for example, especially once they are judges, judges have law clerks 

who often become litigants before them. And of course, many 

judges in small towns know many—excuse me, I shouldn’t say litigants—but lawyers before them. Many judges in small towns know 

most of the local lawyers because there are only so many lawyers 

traveling in their circle. 

Judges acquire spouses and families, many who have business 

interests of their own. Judges may acquire assets. Even though of 

course they don’t continue to have side jobs, there are assets they 

continue to have. 

Judges also in addition to acquiring friends, they acquire enemies. People, for example, may harshly criticize them in or out of 

court, or people may oppose their confirmation by the Senate, may 

testify against them or, for that matter, in favor. 

So as a consequence, decisions by judicial recusal rules have to 

take into account a bunch of different interests, and not just interest in preventing even the appearance, just reasonable person of 

possible partiality. To take one example, I would take it that a reasonable person who hasn’t really focused on the matter would say 

that if somebody has called the judge highly pejorative names, if 

somebody has had a press conference condemning the judge as a 

Fascist and a crook, for example, that might leave the judge’s impartiality to be reasonably questioned. After all, judges are human 

beings who may take umbrage at that and may end up holding it 

against the person. But we can’t have a system in which that in 

which that leads to automatic recusal, because then people can just 

judge-shop simply by insulting enough judges. 

Likewise, my guess is that many perfectly reasonable laypeople, 

when they hear that a case is being argued before a judge by somebody who has clerked for the judge—that is often a very close relationship which leads often to enduring friendship or at least close 

acquaintanceship—they may say well, there is something potentially improper about the judge knowing one of the lawyers; yet 

that is certainly not a Federal court practice, to require recusal in 

such cases. And before the U.S. Supreme Court, many of the top, 

top lawyers are ones who had clerked for the very justices before 

whom they are arguing. 

Of course we want to make sure that judges are impartial. To 

the extent possible, we want to preserve the appearance of impartiality, but we have to balance that against a lot of other factors: 

the fact that we want to have people be able to criticize judges 

without having that automatically form the basis for recusal; that 

we don’t want judges to be hermits; that we want judges to be able 

to be judges in the same area where they grew up and acquired 

many connections and practiced law. 

So as a consequence, I just want to caution against broad discussion of an appearance of impartiality as a legal standard. It is in 

some measure the legal standard, but it has ended up becoming 

something other than what the words seem to appear. It has ended 

52 

up generating a bunch of rules, such as the extrajudicial source 

rule, that try to clarify it and make it more precise and in some 

measure lead to absence of recusal, even when quite reasonable 

people might conclude there is some question about the judge’s partiality. I think that that has to be recognized, and before people get 

upset in particular situations about the possibility of appearance of 

impartiality, they should recognize that sometimes there are other 

factors that need to be balanced against it. 

Mr. JOHNSON. All right. Thank you, Professor Volokh. 

[The prepared statement of Mr. Volokh follows:] 

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PREPARED STATEMENT OF EUGENE VOLOKH


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Mr. JOHNSON. Now we will have the opening statement of Professor Reimer. 

TESTIMONY OF NORMAN L. REIMER, EXECUTIVE DIRECTOR, 

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, 

WASHINGTON, DC 

Mr. REIMER. Mr. Chairman, Ranking Member Coble and distinguished Members, thank you for holding the hearing on this important issue, and thank you for inviting the National Association of 


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Criminal Defense Attorneys to express our concerns and suggestions. 

I want to augment just one aspect of my testimony and propose 

one very concrete step that Congress can take to ameliorate the 

corrosive impact of electioneering upon the reality and perception 

of an independent and impartial judiciary. I don’t hold myself out 

as an expert on the law of judicial recusal nor as an expert on the 

scope of permissible conduct in judicial elections. You have got a 

great panel of experts that can speak much more eloquently to 

those issues. Rather, I speak on behalf of the Nation’s Criminal Defense Bar and the hundreds of thousands of accused persons each 

year who are most keenly impacted by judicial campaign rhetoric 

and the resulting judicial behavior when reelection or retention approaches. 

There is no greater risk to fundamental constitutional rights 

than the risk borne by the accused who appear before judges who 

must pick their way through the minefield of judicial election. And 

in this regard I note that this problem is to a large extent a State 

problem where the Congress’ role is obviously limited. 

Indeed if you consider the Caperton case, which was the genesis 

or one of the geneses for the Committee holding this hearing, look 

at what that case was. It was a battle, a civil fight over land rights 

and ultimately money. It had nothing whatsoever to do with criminal law. The rights of the accused are fundamental constitutional 

rights. But the means of dislodging the sitting judge was a blistering diversionary attack upon his decision-making in criminal 

matters. 

This tactic is replicated time and time again in virtually every 

jurisdiction that elects its judges. As a result, the candidate who 

emerges victorious is often the one that espouses the most anti-defendant, pro-prosecution points of views. 

In answer to Ranking Member Coble’s question as to whether 

this is a genuine problem or merely anecdotal, I think it is a genuine problem. I think that the pervasiveness of it, particularly in 

its impact on the criminal justice system, is one of the reasons, as 

Chairman Conyers noted, that so many people don’t feel, don’t feel 

that they got a fair shake. 

Imagine what it is like to be called into court to answer an accusation and know that the judge who will decide the critical issues 

in the case, including whether or not you perhaps will receive a 

prison sentence, has promised to ‘‘stop suspending sentences’’ or 

stop putting criminals on probation or has stated that she doesn’t 

believe in leniency or, worse, pledge to rule a certain way with certain parties and witnesses. 

All of these examples are cited in our written testimony. They 

are real. They are documented. The roadkill here is not just the 

rights of the accused whose cases are judged by judges who have 

to worry about how a potential adversary may mischaracterize 

their decisions. The true victim is the perception of fairness and 

impartiality of the judiciary that is the moral underpinning of our 

justice system. 

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nal justice system and the larger community, that judges are not 

predisposed to decide a case one way or another. 

There can be little doubt that a potent solution lies in the adoption of recusal rules with some real bite. Strong recusal requirements may in the first place deter the objectionable rhetoric by giving all judicial candidates cover to avoid it. Now, whether or not 

a Federal solution is achievable consistent with our fundamental 

principles of federalism is questionable, but what Congress can 

do—and I would argue should do—is expose the full extent of the 

problem. You should shine a light on the practices and consequences that are undermining our system of justice. 

There is considerable evidence for the proposition that there is 

a provable nexus between election campaign rhetoric and judicial 

outcomes. 

Now, I know the Committee for Economic Development has 

issued a report called Justice for Hire which has some great examples in there, but I will just tell you that in my own practice, which 

I was a practicing attorney, as you noted Mr. Chairman, before I 

came to the association, and I will never forget once representing 

a young man who was a passenger in a car from which a large 

quantity of drugs had been seized from the trunk. The testimony 

at the hearing was so preposterous that even the seasoned court 

officers were giggling at the police account. At the end of the testimony, the judge called the lawyers up to the bench and said, Well, 

what am I going to do here? I said, Well, Judge, it looks like you 

are going to have to suppress the evidence; to which the judge responded, Mr. Reimer, I know it is a bad stop, but I can’t suppress. 

I have got to run next year. Will your client take probation? 

Now, rather than rely on anecdote, conjecture, and a small array 

of independent studies, Congress should authorize funding for a research grant to study the relationship between judicial campaign 

speech and judicial conduct in criminal proceedings. If the research 

confirms what many of us suspect and believe, and what some of 

the studies that have already been done show, it will provide an 

overwhelming impetus for States to act to listen, to some of the 

suggestions that we have heard here today, and to accept Justice 

Kennedy’s invitation, in his opinion in Caperton, to adopt recusal 

standards that are more rigorous than merely the due process floor 

that was set in Caperton. 

This would be a great step forward, and I can tell you that one 

thing is certain: If the present trajectory is continued, the combustible mix of electoral politics, money, and unchecked rhetorical intimidation will destroy the people’s trust in the independence of 

our judiciary. Thank you. 

Mr. JOHNSON. Thank you Mr. Reimer. 

[The prepared statement of Mr. Reimer follows:] 

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PREPARED STATEMENT OF NORMAN L. REIMER


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Mr. JOHNSON. And last, but certainly not least, Professor 

Hellman. 

TESTIMONY OF ARTHUR D. HELLMAN, PROFESSOR OF LAW, 

UNIVERSITY OF PITTSBURGH, SALLY ANN SEMENKO ENDOWED CHAIR, PITTSBURGH, PA 

Mr. HELLMAN. Thank you, Mr. Chairman. The starting point for 

much of today’s discussion is of course the Caperton decision which 

deals with recusals in State courts. One year before the Caperton 

decision, two Justices of the United States Supreme Court expressed concern about the impartiality of a Federal judge. The 

judge was Manuel Real of the Central District of California. He 

was sitting by designation in the District of Hawaii, and the case 

involved competing claims to funds in a brokerage account that had 

been established by the former Philippine President Ferdinand 

Marcos. Justice Stevens in a dissenting opinion described some of 

the things that Judge Real had done in the case. He then said, 

‘‘These actions bespeak a level of personal involvement and desire 

to control the proceedings that create at least a colorable basis for 

a concern about his impartiality.’’ He suggested that it would be 

best if the case were transferred to a different judge on remand. 

And Justice Souter agreed. 

Well, the case went back to the district court. Judge Real continued to preside over those proceedings. Some of the parties requested an accounting. They got one but it wasn’t very satisfactory. 

So they appealed to the Ninth Circuit. 

Just last month the Ninth Circuit handed down its decision. The 

court noted that Judge Real’s written accounting was filled with 

cryptic notations. His oral accounting contradicted the record on 

several points. All this, said the panel, confirmed the doubts about 

his impartiality that Justice Stevens and Justice Souter had expressed. So the panel did order the case reassigned to another 

judge. 

Well, this wasn’t the first time that Judge Real has been criticized by his fellow judges for departing from the ideal of neutrality. 

In January 2008, he was formally reprimanded by the Judicial 

Council of the Ninth Circuit, under the 1980 misconduct statute 

that you heard about a moment ago. The council found that Judge 

Real improperly intervened in a bankruptcy case to help one litigant at the expense of another. 

Well, there was another misconduct proceeding against Judge 

Real, this one a pattern and practice complaint. It was investigated 

very thoroughly by the Ninth Circuit Judicial Council. After that 

investigation, the council concluded that Judge Real failed in many 

cases to give reasons for his decisions when the law required reasons. The council pointed to his obduracy in implementing directives from the appellate court. It found that his actions had caused 

needless appeals, unnecessary cost, undermined the public’s confidence in the judiciary. These occurrences were more than anecdotal, more than occasional. 

Well, that is a pretty damning recital, isn’t it? And you would 

think that these findings would lead to some sort of discipline, but 

they did not. The council dismissed that complaint and it did so because the national committee, the Judicial Conduct Committee, in 

67 

an earlier phase of these proceedings, had said that a pattern or 

practice of this kind could be misconduct only if there was clear 

and convincing evidence of willfulness. The council found that there 

just was not. 

Well, the 1980 act is not the subject of this hearing, and this isn’t 

the occasion to debate the correctness of that ruling. The point, 

rather, is that Judge Real’s actions in the Philippine case and the 

bankruptcy case were not aberrations in his very long career on the 

bench. They were all too representative of a pattern of behavior 

that is totally at odds with judicial impartiality and the rule of law, 

the goals that Justice Kennedy and the Court spoke of in Caperton. 

Mr. JOHNSON. Professor Hellman, if you would sum up. Though 

I really want to know what happened to this judge, but if you could 

sum up because the red light is on. Thank you. 

Mr. HELLMAN. Sure. Judge Real’s behavior doesn’t fit any of the 

standard categories of bias or partiality. A new kind of law is needed, and one law that I think would be helpful would be a peremptory challenge law that is discussed in some of the other statements. I would be happy to elaborate on that for the panel. Thank 

you. 

Mr. JOHNSON. Thank you, sir. 

[The prepared statement of Mr. Hellman follows:] 

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Mr. JOHNSON. Now we will go to questions. I will take the first 

questions. Each one of us will have 5 minutes to ask questions. 

In my statement, I have addressed the Siegelman, Walker and 

Porteous cases. Clearly these cases exist because of some default in 


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our Federal judicial recusal laws. How can we mend the holes in 

our laws on the front end to prevent these types of issues on the 

back end? I want all of the panel members to respond to that, 

starting with Professor Hellman. 

Mr. HELLMAN. Well, I will take up the suggestion of a peremptory challenge law. This is something that I think 19 States have 

adopted. Basically the way I would work it is that each side would 

have one peremptory challenge of the judge. You would just say, 

I think this judge should not sit on the case. The judge would not 

sit on the case. Congress can build on the experience but I would 

not put it into the judicial code right away. I suspect that the Judicial Conference will express concerns about it. 

What I suggest, rather, is a pilot program to be monitored by the 

Federal Judicial Center which would report to Congress and the 

Judicial Conference. And based on that report, you could decide 

whether to expand the program, modify it, or discontinue it. So I 

think that would take care of a lot of those problems. 

Mr. JOHNSON. Thank you, Professor. Mr. Reimer. 

Mr. REIMER. Yes, Mr. Chairman. Our association has not taken 

a formal position on the various options that are out there. We 

have concerns about separation of powers in terms of how the judiciary regulates itself. But we do believe that consideration should 

be given, whether it is in the first instance by the courts and their 

own governing mechanism or ultimately by Congress, to several 

different remedies, including the concept that motions for recusal 

should be decided by other judges: There is also a very interesting 

suggestion of a peremptory challenge of a judge, as well as the 

most important, which is full disclosure of any potential conflicts. 

Mr. JOHNSON. Thank you, sir. Professor Volokh. 

Mr. VOLOKH. I wish I had some suggestions that I felt confident 

enough in, but I am afraid I don’t. I would be happy to yield to my 

colleagues. 

Mr. JOHNSON. All right. Thank you, sir. Professor Flamm. Well, 

I called you Professor but—— 

Mr. FLAMM. I like it. Without knowing the specific facts of all the 

cases, I am not sure if I can properly opine on what provisions 

might prevent some of the problems you have alluded to. 

The peremptory challenge provision that has been suggested is 

one that I think has worked very well in my home State of California. It seems to be fairly popular with attorneys and parties, and 

most judges but to my knowledge aren’t too upset with it. I am not 

sure if it would cure any of the problems in the cases you have referred to, however, because peremptory challenge usually has to be 

exercised right at the outset of the case or right at the outset when 

a litigant first learns the identity of a judge. If they don’t exercise 

it at that point, they can’t do it later on. And usually when a motion to disqualify is based on bias, in most cases the bias doesn’t 

appear until much later in the case. I am not sure if peremptory 

challenge would solve the problem in the specific cases you refer 

to. 

I am not exactly sure of what would solve all the problems, but 

a more rigorous enforcement of the laws Congress has already enacted would certainly be a start. 

Mr. JOHNSON. Thank you, sir. Professor Geyh. 

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Mr. GEYH. As I testified before, I think that the business of asking a different judge than the one who stands challenged would be 

a useful place to start, both for judges who are well-intentioned 

and think that they are impartial when they are not, and for 

judges who are less than well-intentioned who could conceivably be 

outed by such a process. 

The problem is—and this refers back to something Mr. Flamm 

mentioned—in some of the cases we are talking about here, we 

have very late motions being filed or none at all for disqualification, and the success of this process does depend to no small extent 

on people filing timely motions, which complicates my analysis because we can’t refer something to another judge if a motion isn’t 

filed in the first place at the appropriate point in time. 

Mr. JOHNSON. Thank you, sir. Last but not least, Judge 

McKeown. 

Judge MCKEOWN. Let me first say that it is always difficult to 

generalize from three specifics or anecdotal situations. Nonetheless, 

it may be worth studying to see if there is something in the current 

system that didn’t work. 

But I think, as the other gentlemen have noted, that in the case 

of certain claimed dishonesty or direct flouting of the law that it 

is very difficult to write that into a procedure, and that there may 

be situations that can’t be cured other than by the proceedings that 

have gone on. Judge Porteous, as you know, was referred to the 

House by the Judicial Conference itself. 

I would like to comment very briefly, if I might, on the peremptory challenge issue or the one strike, just to let you know that this 

issue has been considered in the past by the Judicial Conference 

which opposes the peremptory disqualification of judges for several 

reasons. One, that it does encourage judge-shopping. Second, there 

is concern that that kind of a peremptory challenge would threaten 

the independence of the judiciary. And third, that it poses some 

very real issues in terms of case management, particularly, for example, in small districts, where an example might be the Southern 

District of Georgia where you only have three judges and in certain 

towns you only have one judge. If you have this kind of automatic 

disqualification there are very real concerns for both parties and 

the system with respect to cost and delay. The Federal districts are 

often very large, unlike the States, which generally operate in a 

county system. 

So there are a number of reasons that the Judicial Conference 

opposed the peremptory disqualification, but of course we have in 

place the motion for recusal. If that motion is made, then there is 

quite a regularized procedure for that to move through the courts 

and on appeal. 

Mr. JOHNSON. Thank you, Judge. My time has expired. The next 

person to ask questions will be the Ranking Member, Mr. Howard 

Coble. 

Mr. COBLE. Thank you, Mr. Chairman. At the outset I said it appeared that we had a formidable panel. My words were prophetic; 

we do indeed have a formidable panel. Good to have you all with 

us. 

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remptory challenge per case be subject to abuse, A; and if so, what 

kind of abuse and how could this be checked? 

Mr. HELLMAN. Thank you, Mr. Coble. Yes, it is subject to abuse. 

It can be, and the States have had some experience with that. I believe that the proposal was actually made to Congress by the late 

attorney John Frank among others in 1973. At that time, he pointed to experience in the States. We have now had, what, 30-plus 

more years of experience to draw on. So I think there is the risk. 

If you write the statute correctly and if you adopt my suggestion 

of doing it initially as a pilot project, those risks can be minimized. 

Mr. COBLE. Professor, why would you not allow or permit a peremptory challenge in criminal cases? 

Mr. HELLMAN. Well, first, I would. I am not opposed to them. 

The reason I suggested starting with civil cases and not including 

the criminal is twofold. First, every criminal case includes the 

United States Attorneys Office as a party, many of them include 

the Federal defender. And if either of those organizations decide 

that a particular judge could not hear their cases fairly, you would 

be in real trouble. Now I don’t think they do that without great 

provocation. But if it happened it would be very disruptive. 

The other—and Mr. Reimer may have something to say about 

this—it may be that each defendant in a criminal case would have 

to have his own right. And you have all these multiple-defendant 

narcotics conspiracy and other conspiracy prosecutions today, and 

that would be really disruptive. Whereas in a civil case, you could 

simply say, One to a side and that is it, no matter how many parties. So it is not opposition. It is just some practical concerns at the 

initial stage. 

Mr. COBLE. I thank you, sir. 

Mr. Reimer, you were sort of tough on candidates who accept 

contributions from third parties and who champion tough-on-crime 

philosophy. I am not being critical of you about that. What should 

happen to a candidate who campaigns on the ground that he opposes the death penalty and that he is subsequently elected? 

Should he be recused from hearing capital cases? 

Mr. REIMER. Well, if the determination rests, as I believe it does 

now, pretty much exclusively in the hands of the jury, I don’t think 

that that necessarily is a disqualifier. 

Mr. COBLE. Would the same answer apply to, say, attorneys or 

candidates who accept contributions from trial lawyers? Should 

they be recused on tort cases? 

Mr. REIMER. Well, on the issue of money, you have the Caperton 

case which basically talks in a very vague sense about the relative 

amount of money and the likelihood that it would impact the person’s or the judge’s ability to be fair. 

I am more concerned and my association is more concerned less 

about the money itself than what the candidate is saying about 

how they will decide cases. And to me, that is a different slant on 

it than Caperton, where there was at least an appearance of a connection to one of the parties. That is a separate issue. 

But when you have people going out there and saying, I am 

going to—I am always going to deny probation, for example, that 

is not a fair adjudication. Even if the judge makes the right deciVerDate Aug 31 2005 12:51 Nov 05, 2010 Jkt 000000 PO 00000 Frm 00104 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\121009\53947.000 HJUD1 PsN: 53947
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sion in a particular case, the litigant is not going to feel that they 

got a fair shake. 

Mr. COBLE. I got you. 

Professor Volokh, your written testimony suggests that you don’t 

think the current system is plagued with this many problems. Do 

you think some critics exaggerate the deficiencies of the system for 

other reasons? 

Mr. VOLOKH. Every system has quite serious problems in particular cases. Some of them are—sometimes they may represent 

systemic problems with the system. Some of it may be the inevitable errors with any system that has humans in it. 

Judge Porteous, for example, is being considered for impeachment. That, as I understand it, is for pretty serious transgressions. 

It is very hard to set up recusal rules that could adequately cabin 

people, judges, who engage in such transgressions. 

Likewise, as I understand the second case that was mentioned, 

there was no motion to recuse filed before a judge. It is very hard 

to see that, declining to recuse in that case, as an example of a systemic problem with the recusal system because, as I understand it, 

all recusal systems are premised on a motion being filed in the first 

instance. So I am sure there are problems there as with any other 

system. 

While I have heard some pretty systemic problems, at the very 

least alleged, I think with considerable weight behind them as to 

certain State systems, my sense is that the Federal system seems 

to have the kinds of problems that any working system or one that 

relies on human beings would have. 

Mr. COBLE. Thank you, sir. I see my red light is illuminated. I 

thank you for being with us. 

I yield back, Mr. Chairman. 

Mr. JOHNSON. Thank you, Mr. Ranking Member. 

Next up at the plate is Chairman Conyers of the full Committee. 

Mr. CONYERS. Thank you, Chairman. This has been a fascinating 

discussion this afternoon, necessitated by the fact that there is an 

investigation of an impeachment process going on in the room that 

this hearing was supposed to have been heard of a Federal judge. 

Only last week or the week before, we resolved another case of a 

Federal judge who reconsidered and decided to terminate his career 

as a judicial officer. And what this discussion has demonstrated to 

me, Chairman Johnson, is that this is a much more intricate subject than first meets the eye. It is complex. 

Of course, I have to acknowledge quickly that lawyers like to 

make issues complex as a matter of profession perhaps. But behind 

the question about what to do and all of the issues that are involved in this, there is another question that has occurred to me 

and I think every Member of this Subcommittee. That is the larger 

question of the fairness of the American system of justice, period, 

without particular reference to the judges, State or Federal. 

One of the things that draw us and our staff to is, how do you 

do that? It is so fascinating, isn’t it, that here we are in a country 

that has been working through this process for 236 years or so, and 

there are still some very big questions out there that have yet to 

be resolved. 

102 

I would like to just—please feel free to interject your views at 

any point in this. I am approaching this as the Chairman of the 

Committee, that I went to the Speaker of the House then to it appeal that I be the first African American in the history of the Congress to be placed on the Judiciary Committee. And he was impressed with that. Speaker John W. McCormack was his name. 

At that time there were only lawyers could be on the Judiciary 

Committee; no scholars or professors or business people. We have 

relaxed that now. We don’t do that anymore. In the Senate Judiciary Committee, they adopted the same process. 

So we will be looking, beyond this afternoon’s hearings, for any 

subsequent recommendations of how we ought to proceed from you 

and any ideas that may come from your colleagues or anybody in 

the system, because this is the way democracy works at its best, 

when we have a candid review. 

Now, I came to Congress working with Bob Kastenmeier. I am 

going to tell him about you and what you did and said here, Professor, because much of it was very good. Could I get an additional 

minute, Mr. Chairman? 

Mr. JOHNSON. Without objection. 

Mr. CONYERS. What I would like to do now is just to invite all 

of you, if our Chairman would indulge, to let you tell us how this 

subject matter relates to the greater issue that hangs over us all 

as members of the bar and members of the court in terms of how 

these two come together and how we ought to look at this exciting 

part of the Federal legislature. 

The Judiciary Committee reviews constitutional amendments 

that are proposed by the Members; jurisdiction over the criminal 

justice system and the Federal corrections system as well; intellectual property matters of trademark, patents, copyrights, all exciting subjects, treaties even. If any of you would just like to give us 

a parting thought about how you see this discussion I am trying 

to raise, I would be very grateful. 

Mr. GEYH. I would be happy to offer a 30-second answer. It 

seems to me that the overriding theme of the committee’s work is 

access to justice in all of the variety of forms that you articulate. 

And that that means that we need to worry, in order to provide access to justice, about how judges are selected, which is what Mr. 

Reimer is talking about; how judges are disciplined and removed, 

and Judge McKeown talked a little bit about that process; and how 

the courts are administered, which is beyond the scope of this hearing but is very much in your bailiwick. 

To me, the problem is a perennial one because access to justice 

is an always-moving target. It is not a matter of getting it right because there is no way to get it right. You can only do the best you 

can at a moment in time, and that is really what the story is all 

about. I think right now we are at a given place in time and worrying about disqualification rules and what is the best system for 

the current place and time, that might not have been the best system 50 years ago. But that is fine. That is why there is always a 

Congress. 

Mr. REIMER. If I can, just to amplify on some of the points I was 

making before, we have approximately 2.5 million people in prison. 

We have a conviction mill in our misdemeanor courts that is an abVerDate Aug 31 2005 12:51 Nov 05, 2010 Jkt 000000 PO 00000 Frm 00106 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\121009\53947.000 HJUD1 PsN: 53947
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solute disgrace. So we have countless numbers of our citizens passing through these systems. The mix of money and rhetoric and 

electioneering is undermining the faith of the people in the independence and impartiality of the judiciary. 

That is the problem, and I don’t think that one hearing is the 

answer. I proposed a study. I don’t think one study is the answer. 

But we certainly have to shine a light on it if we are going to correct it, because, ultimately, if the people don’t have confidence in 

the judicial system, we are in trouble. 

Mr. CONYERS. Your Honor. 

Judge MCKEOWN. Thank you. Mr. Chairman, I appreciate that 

you have recognized how intricate and complex these issues are 

and not just subject to a simple solution. But something that you 

said really was brought home to me and that is the importance of 

fairness in the system. 

On that point, I think it is important, not just the actual fairness 

of the system, but the public’s perception of the system. That is 

something that I think the Committee obviously is looking at here. 

What can we do? 

Well, certainly we welcome, on the part of the Federal judiciary, 

simply having the subject of ethics being so prominent. It is important to us. It is important to the public. And we go back from this 

hearing with a renewed mission and vigilance to look at our ethics 

procedures and to continue with our education and with our advice. 

I am happy to take back to members of the judiciary the many 

comments we have gotten from the Members, your thoughts and 

your concerns. It is a privilege to be able to be here, and we welcome ethics being first and foremost. It is important to us. It is important to the public. 

Mr. HELLMAN. I will just add one thing to that. I think one of 

the problems that underlies some of the concerns is that judges are 

so used to carrying on most of their work in confidence that they 

don’t always realize how important transparency is. I think one of 

the virtues of this hearing is that it emphasizes that. And I am 

sure Judge McKeown will go back to the Judicial Conference to the 

Circuit Council and to the other judges, and that will help to build 

understanding of the importance of not just doing the right thing, 

but telling people what is going on. 

Mr. CONYERS. I thank you very much, Mr. Chairman. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Is there anyone else that cares to respond? Okay. All right. 

Well our next questioner—interrogator, some say—is the Honorable Sheila Jackson Lee out of Houston, Texas. 

Ms. JACKSON LEE. Mr. Chairman, let me thank you very much 

for this very provocative hearing. And I think the Judiciary Committee, as I have come to understand, has a dominant role both in 

the business of this Congress, but also the important business of 

justice in this Nation. I believe in the optimism of America. And 

frankly believe that we can design the appropriate framework for 

the Federal bench to contemplate this whole area of recusal. 

I would offer to say that as I listened to one idea—and I love creative thought about a preemptive strike of sorts—that I would only 

offer this expanded explanation. The Federal courts saved me, as 

a representative of a body of people that were second-class citizens 

104 

for centuries. And I am reminded of the courts that Thurgood Marshall went in, and was able to find Federal judges that would provide the opportunity for justice, the opportunity in Brown v. Topeka, and Justice Warren to be able to open the doors for opportunities for those individuals like myself. It has happened for women. 

It has happened for Latinos. It has happened for others of less economic conditions. So I am sensitive to this question of recusal or 

the automatic recusal. 

I believe that our basic framework should be in the integrity of 

our judiciary. But at the same time when that integrity is pierced, 

we lose. The justice system loses. America loses. 

And I do want to associate myself with the Chairmen, both the 

Chairman of the full Committee and the Chairman of the Subcommittee, on cases such as the former Governor of Alabama, Peter 

Polyvios and Vicky Polyvios, a case or cases that I have followed. 

The interesting point about these cases is that they include prosecutorial abuse where these petitioners are seeking documents that 

would help produce prosecutors and agents for interviews. We don’t 

know whether there was a hand-in-glove relationship between 

prosecutors and judges. The Jenna Six case I consider expanded, 

because it deals with prosecutorial abuse where there was inaction 

as opposed to action. 

So my point would be that we need to look at these questions 

with a very keen eye and a sensitive heart and mind, because what 

we do want to have happen is that lawyers can go into a court and 

find justice. 

So I ask this question: I think the overall problem that we have 

is a stigma that comes about when a judge recuses himself or herself. People begin to look for suspicious behavior, and it may be 

that that judge has the highest level of integrity. 

So my first question would be—and I would like you to go down 

the line. We need to develop from the highest levels the Attorney 

General’s Office, the Judicial Conference, the Supreme Court, that 

recusal is not an indictment. It is not a conviction of that court and 

that judge, at the minimal level, if they decide to do that on the 

grounds of making sure there is integrity. My first question. 

The second question is: Do you feel that we have a system of justice where there are victims because a judge has not recused themselves, because there is conflict of interest? And if that is the case, 

we cannot tolerate it. 

I would appreciate it if we could start with the judge quickly on 

the stigma and how we can break that to make it all right for a 

judge to make a determination based on our criteria that they 

recuse themselves. If you could quickly go down because my time 

is short. 

Judge MCKEOWN. Thank you. On that, I guess I would paraphrase yours to say recusal is not a four-letter word. 

Ms. JACKSON LEE. I like that. 

Judge MCKEOWN. We would like to have judges know that. I 

think we have made a good start at that. We have a number of 

these advisory opinions that start through all the reasons a judge 

should recuse, and we want judges to be mindful of that. 

105 

With your comments in mind, I think it just renews the importance of education in this area, because recusal is good for the judiciary and for the public when done appropriately. 

Ms. JACKSON LEE. And you know that justice has been denied 

probably in cases where that recusal did not occur? 

Judge MCKEOWN. You know, I do not have personal knowledge 

of various circumstances. I have seen cases where it came up on 

appeal and the court of appeals either reversed a denial of someone 

who declined to recuse, or a case where the court of appeals said, 

yes, we believe it was improper for the judge to stay on the case, 

and we are going to reassign that case both through our statutory 

authority and through our inherent oversight over the district 

courts. 

Ms. JACKSON LEE. Mr. Chairman, could you indulge me an additional minute so I could just go down the line and just include in 

there whether you believe justice has been denied. I ask unanimous 

consent, Mr. Chairman. 

Mr. JOHNSON. Without objection. 

Mr. GEYH. The first problem to which you allude is one that really is a cultural one within the judiciary. At common law, the notion 

that a judge could be biased was simply not even contemplated. It 

was an irrebuttable presumption that a judge was impartial, that 

he couldn’t be challenged. And while we are past that now, I think 

there is still the norm that they are impartial. I think it is a fair 

norm. 

But getting to my earlier testimony, the problem is that judges 

are people too, and in the 20th century and beyond, we understand 

that judges as people, too, are subject to biases. So we need to 

reach that kind of agreement that, yes, we can presume impartiality without begrudging the fact that judges are human, too, and 

they are capable of the same biases and thoughts that others have. 

And when that happens and when they go over the top, they need 

to step down. 

As to whether justice has been denied, I am sure that it has. The 

problem is that the only circumstances we have in which a judge 

has done badly is typically in cases where they are outed. So we 

have a hell of a time figuring out about the great silence, but I am 

sure it has happened. Identifying cases is hard. 

Ms. JACKSON LEE. Thank you. 

Mr. FLAMM. There are certainly cases where justice has been denied, and there are an exponential number of cases beyond that 

where litigants believe justice has been denied. I guess the one 

thing I would say about that is that no system that Congress—no 

framework that Congress enacts is going to cure that. There are always going to be problems with the system. There are always going 

to be some litigants that don’t believe justice was served. 

But as to the particular one that you alluded to, which is a mechanism for trying to alleviate some of that concern, the peremptory 

challenge, I think you have expressed a concern about a stigma associated with that. I think the opposite is true. I think that when 

there is no peremptory challenge, what tends to happen is that if 

a litigant is going to do anything at all, they are going to challenge 

a judge for cause and they are going to make a claim that the judge 

is actually biased. That is where judges tend to get their hackles 

106 

up and there tends to be a real donnybrook and there tends to be 

more public attention. If a peremptory challenge exists, and it can 

be exerted in a timely fashion, there is usually no stigma involved 

at all. 

Ms. JACKSON LEE. That wasn’t my exact point, but that is okay. 

Mr. FLAMM. I will just add, in my home State of California, 

where we do have the peremptory challenge right, judges don’t 

even see the peremptory challenge. It goes directly to the clerk and 

a new judge is assigned. So there is no stigma. Maybe that is one 

of the advantages of the peremptory challenge system. 

I guess I should say that even in your home State of Texas, there 

is a peremptory challenge rule on the book now for visiting judges, 

and so far there has been no report that I have heard of any concern about abuse with that use of that statute. 

Mr. VOLOKH. One reason I am cautious about some of the procedural proposals is precisely because I think recusal should be seen 

as not something to be embarrassed about. And in fact it is good 

if judges in close cases, even if they think recusal isn’t strictly necessary, step aside just to avoid any shadow of a doubt. 

Ms. JACKSON LEE. Without the stigma. 

Mr. VOLOKH. Exactly. One problem, though, is that some of the 

suggestions might—I am not at all sure they will—but might have 

actually counterproductive effect along those lines. So for example, 

has has been called to encourage the publication of opinions explaining why a judge recused himself. That may be very good, but 

it might also leave judges in close cases to decline to recuse themselves because they don’t want to set up precedent for themselves 

in the future, or they don’t want to be seen as implicitly criticizing 

another judge who didn’t recuse himself under similar circumstances. So in a sense, the ability to do a silent recusal actually 

encourages people to recuse themselves without having to give all 

the reasons and without having more attention. Perhaps it is still 

a good idea to have that, but once you consider some of these possible perverse consequences—— 

But as to your second question, I am positive that in any system 

the size of the Federal judicial system, injustice has been done because of failure to recuse them and because of lots of other reasons. 

The question is: Are there particular proposals that will diminish 

the risk that injustice will be done, rather than substituting some 

other possible causes for injustice which might be as bad or worse? 

So the question isn’t just, has it ever happened? I am sure it has 

happened. The question should be: Is there something that we 

think will materially decrease the risk of it happening without 

compromising other very important concerns? 

Mr. REIMER. I want to just confine myself to answering the two 

questions; but just, again, recognizing that the slant that we have 

on this is concern about what is going on in the States and particularly the 39 States that elect judges. First of all, court administrators should encourage a climate in which recusal is acceptable. In 

many jurisdictions, judges are saddled with huge dockets and there 

is a lot of internal pressure to move these dockets along. So we 

need to have court administrators say, Look, if there is the slightest question in your own mind, give up the case. It is not bad. You 

won’t get a demerit for doing that. 

107 

With respect to whether or not injustice has taken place, I don’t 

know. I am sure that it has. But what I do know is that the perception of injustice is taking place. We can’t know, because we can’t 

look into the heart and mind of an individual judge to know whether or not their decision was colored by statements that they made 

before they took the bench or getting to the bench. 

I am not concerned about the heart and the mind. I am concerned about the mouth. If they say it, and a litigant goes before 

them and they make a decision, it is a perception that the person 

hasn’t had a fair chance. 

Mr. HELLMAN. To start with the second question, unfortunately 

there almost certainly have been injustices in particular cases, because the cases are handled by judges who, as others have said, are 

human. The task for the judiciary and the Judiciary Committee 

and Congress is to minimize those and to build structures that will 

make them as infrequent as possible. I do think that the judiciary, 

as Judge McKeown said, takes its responsibilities in that very seriously. And on the question of whether a recusal is seen as an admission of a lack of impartiality, I am not sure that it is. I think 

that in many instances, it is seen as a judge conscientiously doing 

what the law requires him or her to do. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. You 

have been very kind. I hope for the Polyvios, and others as well, 

we can get justice. I yield back. 

Mr. JOHNSON. Thank you. 

Next we will have questions from a battle-crusted gentleman 

who practiced law and was a litigator before he was elected to Congress from the great State of Illinois, Mr. Mike Quigley. 

Mr. QUIGLEY. Thank you, Mr. Chairman. A great introduction. 

About 200 trials under my belt, and I can still say after surviving 

10 years in Cook County, some of my best friends are judges. But 

the recusal system worked pretty well there. And in the criminal 

cases I worked on, you had an absolute right to a substitution of 

judge, and in very serious cases, too, which I will tell you from 

practical experience saved the system a tremendous amount of 

angst and problems. If you know anything about Cook County, it 

worked very well. It worked through the chief judge’s office. So the 

judge didn’t know about it unless the case was already before him. 

And then in a certain time frame, you still had the right to make 

a motion for substitution and a right of recusal. So I thought it 

worked quite well. It was very rare that you saw a judge find out 

about it or get offended by it. 

But as to the minority of judges—and I think it is a minority— 

who are deficient in some respects, in some cases, that can be ethically deficient or without the realization that they might have at 

least the appearance of impropriety, I always found it a very difficult time finding another judge willing to sit in judgment, and say 

I think my guy I go play golf with, or my partner, one of my fellow 

judges, you know, should step down in this because, as you say, I 

think someone said, besides the stigma, they are being accused implicitly of not being impartial. So is it harder to do it yourself? Or 

is it harder to do for somebody else that you worked with? So two 

professors I think mentioned that. 

108 

I mean, if you could give us your assessment of whether or not 

you think judges can effectively sit in judgment of each other toward this sort of motion? 

Mr. GEYH. Your point is well taken. To me, a big part of it is the 

perception of justice. When you have the fox guarding his own henhouse, it creates more of a perception problem than when you defer 

the matter to another judge, another neutral. 

I think there is a study that the American Adjudicative Society 

ran in the 1990’s which did reveal that it is hard for judges to rule 

on each other. A situation where, you know, in a variety of situations where the judge basically has to find out what the facts are 

in an inquiry—for example, in taking the Judge Porteous matter, 

where a lot of information was simply not disclosed because questions were not asked. If those questions were asked, for example, 

of the lawyers involved as to what they did or did not do vis-a-vis 

the judge, would they have perjured themselves? Or would they 

have answered directly? We will never know because the judge 

himself was the only one conducting the hearing, not someone else. 

I think your point is very well taken, that it is hard for a judge 

to rule on his colleague in much the same way as it is hard to rule 

on himself. So I think it is an important procedure to consider if 

for no other reason than I think it does protect the seemingly selfinterested aspect of a judge grading his own paper. 

Mr. FLAMM. Professor Volokh and I were discussing that during 

the break, and I mentioned that in California when a judge is challenged for cause, the motion is transferred to another judge, but it 

isn’t one of the judge’s colleagues. Typically a Superior Court judge 

in California, if they are challenged for cause, the motion will be 

transferred to a different superior court, and a judge from a completely different court will decide the motion. 

There has been no survey of how this has worked out and all of 

the evidence is anecdotal. But from everything that I have seen 

and heard, it seems to work pretty well, and I am certainly aware 

of a number of situations in which judges, California superior court 

judges, came down very hard on judges from other courts in saying 

that they should have recused themselves and didn’t, when it is not 

clear that a judge would have come to the same conclusion if he 

was going to decide that motion himself, or if another judge on the 

same court was going to decide the motion. 

Mr. QUIGLEY. If I could ask you a question, Your Honor, in your 

heart of hearts, in looking at this don’t you think that issue and 

the issues of a judge reviewing themselves or putting themselves— 

is more challenged when it is a Federal judge, because they don’t 

face reelection. 

Just from my own perspective, a judge who at least every 6 years 

in Illinois has to be not reelected, but they have to be brought back 

by the voters in a different process. I just think it is human nature 

that a few of us, and we are all thin-skinned, a few of us more than 

others, some wear black robes, but those who do it in Federal 

court, perhaps it is just human nature, and they might sense that 

they can’t be touched, and it is just one more reason to challenge 

the system as far as you can. 

Judge MCKEOWN. Well, I can’t tell you as an empirical matter, 

but I can say that judges, Federal judges do in fact recuse on a regVerDate Aug 31 2005 12:51 Nov 05, 2010 Jkt 000000 PO 00000 Frm 00112 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\121009\53947.000 HJUD1 PsN: 53947
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ular basis and take themselves out of cases. I think they are comfortable, because within the system there are usually other judges 

to hear the case. So it does often happen that judges do recuse. 

I don’t think there is a stigma about recusal; but you raise a 

question as to whether someone else should hear the case. The Judicial Conference hasn’t taken a position on that particular point, 

and certainly it might merit some additional inquiry and consideration. 

Questions one might have if you were looking at this, is there 

some kind of a threshold in terms of frivolousness or patent frivolity? A second point would be, what would be the criteria for referral to another judge, or would it be a blanket referral? 

And, finally, you would have to look at issues of cost and delay, 

particularly given the geography of the Federal system. 

But you raise an interesting point, obviously. I, like you, I have 

practiced in both the Federal and the State system, and I think to 

some degree the fact that Federal judges are not elected in fact 

gives them both the ability and the cushion to perhaps do the right 

thing in an easier manner because they are not subject to an election. 

Mr. QUIGLEY. I appreciate your remarks. Thank you. 

Mr. JOHNSON. Thank you, Mr. Quigley. We will adjourn this 

hearing but I would like to thank all of the witnesses for their testimony today. 

Without objection, Members will have 5 legislative days to submit any additional written questions which we will then forward to 

the witnesses and ask that you answer as promptly as you can to 

be made a part of this record. 

Without objection, the record will remain open for 5 legislative 

days for the submission of any other additional materials. 

Again, I thank everyone for their time and patience today. This 

hearing of the Subcommittee on Courts and Competition Policy is 

adjourned. 

[Whereupon, at 3:22 p.m., the Subcommittee was adjourned.] 

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PREPARED STATEMENT OF THE HONORABLE HOWARD COBLE, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NORTH CAROLINA, AND RANKING MEMBER, SUBCOMMITTEE ON COURTS AND COMPETITION POLICY

Thank you, Mr. Chairman. I appreciate your calling this hearing on the important 

topic of judicial recusals. 

There has always been inherent tension among the three branches of our federal 

government. The Founders intended that no one branch would dominate the other 

two, and that each branch would guard its own constitutional territory from encroachment. This system of checks and balances has done a wondrous job of defending civil liberties, promoting national security, and expressing the popular will 

through a deliberative legislative process. The inevitable by-product of this construct 

is institutional tension, especially when one branch ‘‘checks’’ the other. But it’s natural; in fact, it’s a sign of civic health. 

This hearing wasn’t convened to create more tension than already exists. We’re 

not here to poke a co-equal branch of government in the eye. All members of the 

Courts Subcommittee respect the work of the Judiciary even if we don’t agree with 

their work product in every instance. And following the Founders’ example, we appreciate the importance of judicial independence. Article III judges should be insulated from political pressure to render unbiased opinions—and that’s why they enjoy 

life tenure. 

However, this doesn’t mean that federal judges are entitled to a free pass in life. 

We have a constitutional obligation to conduct oversight on judicial operations, just 

as the Judiciary is charged with reviewing our statutory handiwork for legal defects. 

But short of impeachment, a congressional prerogative rarely exercised, there’s little 

we can do to discipline judges for ethical lapses. Still, we need to work with the Judiciary to identify areas of concern if they exist and to develop corrective responses 

when appropriate. 

As a former Courts Subcommittee Chairman and a 25-year member of the full Judiciary Committee, I’ve participated in previous oversight efforts to review the state 

of judicial ethics and behavior. Much of this work culminated in a rewriting of the 

Judicial Conduct and Disability Act of 1980, the statutory mechanism by which individuals may file complaints against federal judges. While I’m sometimes plagued by 

senior moments, I do recall this project peripherally touched on the matter of 

recusals, with some arguing that the recusal statutes were dead law; in other words, 

judges weren’t likely to recuse themselves from cases and lawyers were too frightened to ask them. And if memory further serves, part of this Subcommittee’s impeachment investigation of District Judge Manny Real during the 109th Congress 

involved a recusal issue. 

No open-minded litigant believes he’s entitled to win in federal court. But every 

litigant expects and deserves to be treated fairly. At minimum, this means the presiding judge must be free of bias or prejudice toward any litigant. If this isn’t the 

case, the judge should step aside. 

We have a balanced panel of witnesses who can speak to this issue in great detail, 

so I’m eager to hear their views. I emphasize that I’m not out to ‘‘get’’ the Judiciary. 

I don’t know if the complaints about the state of recusal jurisprudence are anecdotal 

or genuine. But that’s why we’re having this hearing, and I look forward to participating. 

Thank you, Mr. Chairman. 

Mr. Chairman, at this time I’d like to make a unanimous consent request that 

we enter into the record a statement and other information submitted by Michigan 

Supreme Court Justice Robert Young about his state?s experience with their recusal 

laws. 

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