Recusal on Appeal: An Appellate Advocate's Perspective

I. INTRODUCTION My clients all share an overriding concern--to win on appeal. Only rarely in my fifteen years of appellate practice, however, has a client expressed concern over whether grounds exist to disqualify a judge assigned to hear and decide the case on appeal. I have concluded from this evidence that clients typically believe that appellate judges will hear cases in a fair and impartial manner, and I suppose that clients might even welcome the participation of appellate judges perceived as, for lack of a better term, biased in favor of their position on appeal. But, for understandable reasons, a client would be quite concerned about having an appeal heard and decided by a judge perceived as biased against the client's position. Assuming that my clients are in these respects similar to those of other appellate lawyers, I will address in this article the considerations likely to affect a decision about whether to seek the recusal of a judge assigned to hear an appeal. First, however, I survey the field in order to place those considerations in the appropriate context. II. REPRESENTATIVE COURT RULES AND PROCEDURES To discuss recusal from the perspective of an appellate practitioner, it is first necessary to understand the differing procedures that appellate courts employ in deciding which judges will hear and decide which appeals. And an appellate court's procedures concerning when the identities of the judges who will hear and decide an appeal are disclosed to the parties can also be of importance in a particular case. Only after understanding how appellate judges go about determining whether recusal is appropriate and determining the point during the appellate process when the identities of the judges assigned to hear and decide an appeal are disclosed to the parties can one usefully consider the recusal-related options and strategies available to an appellate practitioner. The appellate court whose procedures I know best is the United States Court of Appeals for the Third Circuit. (1) That is the appellate court in which I represent clients most frequently, and before entering into private practice, I served a two-year clerkship for a Third Circuit Judge. I know from this experience that Third Circuit judges are expected to furnish the Clerk's Office with a list of parties, attorneys, and law firms on whose cases they will be recused from participating. Thus, if the judge's spouse or child is an attorney, the judge will likely include the law firm at which the spouse or child works as one in whose cases the judge will refrain from participating. Similarly, if the judge owns stock in a given company, the judge will include it on his recusal list. The Third Circuit, like all the other federal Courts of Appeals, decides the vast majority of appeals using three-judge panels. The Third Circuit is authorized to have fourteen active judges, (2) and also calls on its senior circuit judges, along with visiting circuit and district judges from other courts, for assistance in hearing and deciding appeals. Drawing on this group of available judges, the Clerk's Office, in coordination with the court's chief judge, compiles an oral-argument calendar that lists which panels will hear cases during which weeks of the year, along with the cities where the panels are scheduled to convene. The lists are randomly generated, although they are subject to change both to ensure that all active judges have the opportunity to sit on panels with one another and to accommodate the judges' anticipated unavailability for oral argument due to other work-related or personal obligations. Once the oral-argument calendar is established, the Clerk's Office begins tentatively assigning appeals to the next available panel in the order in which cases become fully briefed and ready for disposition. Before a case is tentatively assigned to a panel, however, the Clerk's Office will compare the parties, their lawyers, and their law firms against the judges' recusal lists. …