Howard J. Bashman's appellate columns, etc.

A Federal Appellate Court Attempts To Thwart Strategic Recusals On Appeal

By Howard J. Bashman
Monday, February 14, 2005
Notwithstanding what some may say, appellate judges are not fungible automatons. A particular group of three judges drawn to serve on a panel assigned to decide a set of appeals might predictably reach decisions that differ from the decisions that a group of three other judges serving on the same appellate court would reach. After an appellate judge has produced a sufficient track–record of decisions, he or she may develop a reputation based on whether those decisions appear to be plaintiff–friendly or defendant–friendly, prosecution–friendly or criminal–friendly.

On occasion, an appellate lawyer who receives an unfavorable ruling cannot help but speculate whether the outcome would have been altered had a different group of three judges from the court before which the appeal was pending been assigned to decide the case. To many, the composition of an appellate panel may seem like the weather: people can talk about it endlessly, but no one is capable of changing it. But while that saying may be correct with regard to the weather, it is not correct with regard to the make–up of an appellate panel.

The subject of strategic recusal -- by which I mean the recusal of one or more appellate judges accomplished purposefully by a lawyer or litigant -- is not often discussed, no doubt because the goal seems unfair and perhaps unethical. But in a culture where the phrase "win at all costs" is often celebrated, you can be sure that strategic recusals do occur.

How might one go about engineering the strategic recusal of an appellate judge? One easy method is to have as counsel in the case the law firm at which the appellate judge's spouse or other close family member works. Or, if the appellate judge is the spouse of a politician, a law firm can attempt to engineer that judge's recusal by becoming a donor to the politician's campaign. It might seem odd at first glance for a law firm that represents corporate defendants to be donating money to a plaintiff–friendly politician, until you realize that the plaintiff–friendly politician's spouse is a plaintiff–friendly appellate judge who now will be recused from participating in cases involving that defendant–friendly law firm.

Attempting to engineer the recusal of appellate judges perceived as unfavorable strikes me as audacious, but it might strike others as quite a rational approach. For example, in the U.S. District Court for the Northern District of Alabama, attempts at recusing a certain U.S. District Judge by hiring the law firm at which his close relative worked arose in so many different cases that the court adopted a local rule attempting to alleviate the problem.

And just last week, the U.S. Court of Appeals for the Second Circuit issued an interim local rule that attempts to limit strategic recusals caused by amicus curiae briefs. Perhaps recognizing that a true friend of the court would not cause the disqualification of judges assigned to decide a case, the new Second Circuit local rule provides:

"The Court ordinarily will deny leave to file a brief for an amicus curiae where, by reason of a relationship between a judge who would hear the proceeding and the amicus or counsel for the amicus, the filing of the brief would cause the recusal of the judge."

Appellate judges are certainly able to determine for themselves what value to assign to amicus briefs and whether to prefer avoiding judicial disqualification over allowing the participation of a friend of the court. Yet it is difficult to tell, based on the text of the Second Circuit's interim rule, precisely how the rule will operate in practice.

To begin with, many amicus briefs are filed on appeal without having to obtain permission from the court. Why does the strategic recusal concern not extend to amicus briefs filed with the consent of the parties to the appeal, for which no court approval is required?

Second, will the rule operate to deny permission to file an amicus brief if the counsel for the amicus would cause the recusal of a certain Second Circuit judge, but that judge has not yet been and may never happen to be randomly assigned to hear that very appeal? Many cases are briefed before they are assigned to a particular three–judge appellate panel.

In such a case, the Second Circuit's interim rule could operate three different ways. The Second Circuit could assign an appeal in which an amicus brief would cause one judge's recusal to a panel on which that judge was not serving, thereby accomplishing the purpose of a strategic recusal. Or, the appeal could be randomly assigned to the next available panel, and the amicus brief would be refused only if the judge who would be forced to disqualify happened to be assigned to that panel. Finally, the Second Circuit could refuse to accept for filing any amicus brief that would disqualify any of that court's judges, without regard to whether any judge facing disqualification would in fact have been assigned to decide the case. It is impossible to tell, based on the text of the Second Circuit's interim rule, in which of these three ways the rule will operate.

Third, the rule is entirely silent concerning whether Second Circuit judges remain free to apply different recusal standards depending on if the potential recusal is triggered by a party as opposed to an amicus. In my experience, some federal appellate judges will be more reluctant to recuse where the recusal is triggered by an amicus than if the same grounds for recusal involve a party to the appeal. The Second Circuit's interim rule does not expressly preclude such a double–standard, but if such a double–standard were allowed perhaps amicus–related recusals would not be enough of a problem to require the interim rule in the first place.

Finally, if the purpose of the interim rule is to prevent strategic recusals, would it not make much more sense to adopt a rule that addresses the problem with respect not only to a subset of amici but with regard to all parties and all amici? Perhaps the Second Circuit is proceeding incrementally, which is certainly a valid rulemaking strategy, but if the concern of strategic recusals is important enough to address with regard to amici, then surely the problem is important enough to address with regard to the actual parties to an appeal.

Whatever strategic recusals that do occur on appeal will typically be orchestrated subtly rather than in a brash and flamboyant fashion. Appellate courts in my view act properly when they adopt rules that attempt to prevent parties and their counsel from orchestrating a more favorable panel through the use of strategic recusals. To be sure, a party deserves to be represented on appeal by the lawyer of its choosing, but the decision concerning which lawyer to choose is not properly based on which appellate judge or judges the lawyer's presence would recuse from the case.

The issue of strategic recusal on appeal, to the extent that appellate courts are experiencing the problem, should be addressed head–on by rules that apply to all the lawyers in the case, the parties, and any amici. The Second Circuit's interim rule is an encouraging first step toward solving the problem of strategic recusals on appeal, and yet I question why that court has not pursued a more comprehensive solution to this vexing problem.

This article is reprinted with permission from the February 14, 2005 issue of The Legal Intelligencer © 2005 NLP IP Company.