Current Issues in Judicial Disqualifications Symposium 2011

I. INTRODUCTION 639 II. SHIFTS IN THE JUDICIAL RECUSAL LANDSCAPE SINCE 2001 .... 641 III. OVERVIEW OF THE PAPERS 645 A. Honorable M. Margaret McKeown 's Overview of the Federal Recusal Scheme 646 B. Professors Charles Geyh and Jeffrey Stempel Debate Future Approaches to the Recusal Rules 647 C. Professor Margaret Tarkington 's Call for First Amendment Protection for Lawyers Who Impugn Judicial Integrity in the Context of Recusal Motions 650 IV. CONCLUSION 651 I. INTRODUCTION In connection with the January 2011 Annual Meeting of the Association of American Law Schools (AALS) held in San Francisco, California, the AALS Section on Litigation (Litigation Section) sponsored a panel discussion on "Current Issues in Judicial Disqualification" (the Program). The AALS Sections on Professional Responsibility and Civil Procedure co-sponsored the Program, which featured a call for papers - the winners of which follow here. Our judicial branch of government is critical to the nation's stability, and its legitimacy has allowed it to weigh in on many of this country's most divisive issues, not the least of which being Bush v. Gore,1 the United States Supreme Court decision that effectively decided the 2000 presidential election. However, the legitimacy of our judicial branch depends on the impartiality of our judges. Ten years ago, the Litigation Section spotlighted judicial bias in its 2001 annual program when it questioned the impartiality of the Louisiana Supreme Court. The court limited Louisiana's law student practice rule, effectively barring the Tulane University Law School's Environmental Clinic (Tulane Clinic) from representing community groups that had successfully blocked construction of chemical plants in low-income, largely African-American communities overburdened with environmentally hazardous businesses.2 The Tulane Clime's success in a string of such representations mobilized the business community, which heavily contributed to the electoral campaigns of the popularly elected Louisiana Supreme Court justices. The business community lobbied heavily for a change to the student practice rule.3 A classic follow-the-money chart could then be drawn from the business lobbyists to the chambers of the chief justice of the Louisiana Supreme Court, who then changed the student practice rule in Louisiana to effectively bar the Tulane Clinic from representing these types of communities.4 The Tulane Clinic case spotlighted how campaign contributions could create an appearance of bias in a judiciary reliant on such funds for re-election. More generally, it cast doubt on judges' impartiality and whether judges can be trusted to step aside if their impartiality could reasonably be called into question. The media attention on this5 and other examples of judges acting with apparent questionable impartiality6 has helped fuel a potential crisis in the public's confidence in our judiciary, particularly over the question of whether our judiciary is truly impartial. This concern has spurred interesting shifts in the judicial recusal landscape in the decade that has followed the Litigation Section's 2001 Tulane Clinic-inspired program. II. SHIFTS IN THE JUDICIAL RECUSAL LANDSCAPE SDTCE 2001 Seismic shifts in the judicial recusal landscape since 2001 - an area known for its glacial pace of change - led the Litigation Section to return to the topic of judicial bias this year. Three U.S. Supreme Court cases have provided much of the momentum. First, in June 2002, the Court invalidated many restrictions on judicial campaign speech in Republican Party of Minnesota v. …