It is increasingly common for politicians and activist groups to ask judges to recuse themselves from high-profile cases on the flimsiest of grounds. One example is Sen. Elizabeth Warren’s attempt to have 5th U.S. Circuit Court of Appeals Judge Don Willett recuse himself from a case involving credit card expense limits over one of his children’s savings accounts The minimum amount invested in the bank is ridiculous. The Judicial Conference’s Code of Conduct Committee (correctly) determined that Judge Willett’s investment was too “indirect and incidental” to warrant recusing herself from the case, but that wasn’t enough for Senator Warren.
Attorney Ted Olson denounces “alarming rise in baseless judicial ethics attacks” and non-party recusal claims in recent lawsuit wall street journal column. After recounting the above story, he wrote:
Interest groups are demanding that judges and justices recuse themselves because investment ties are also being undermined. The latest incident comes as outside groups wrote to a federal district judge asking him to recuse himself from considering the legality of a new Federal Trade Commission rule banning non-compete clauses in employment contracts. The judge held shares in several public companies that were not parties to the proceedings but used non-compete clauses in their employment contracts.
Avoidance tactics become more outrageous. Typically, only parties directly involved in the litigation can file a motion to recuse a judge due to an alleged conflict of interest. But we are now seeing a concerted campaign to force avoidance. Left-wing interest groups are filing recusal requests and issuing press releases and press conferences. This practice should stop. There is no formal mechanism for outsiders to make such recusal requests, and for good reason. They clog the courts with extra briefings and hearings, causing delays and skewing results. The court should refuse to accept these malicious requests and impose sanctions on the responsible lawyers and parties. . . .
As Olson points out, baseless recusal arguments will not be limited to judges on one side of the jurisprudence spectrum. Olson noted that some same-sex marriage opponents have tried to force judges to recuse themselves from proceedings. He might also note that there are many prominent liberal judges married to individuals active in public policy who will be forced to recuse themselves from many cases where activist-driven standards are applied indiscriminately.
As Olson points out, excessive calls for avoidance and unwarranted moral attacks have consequences beyond the individual cases in which these issues are raised.
These tactics are harmful. Unfounded accusations of judicial bias or conflict are designed to intimidate judges into needlessly recusing themselves, or worse, overcompensating in judicial decisions. These charges are intended to undermine the legitimacy of the courts and public confidence in the impartial administration of justice.
These are near-term goals. However, within this latest trend of coordinated evasive attacks, I see a more malicious and dangerous long-term goal. These baseless attacks are ultimately designed to undermine the independence of the entire federal judiciary. . . . It is a well-funded and coordinated effort to lay the groundwork for requiring court packing and other reforms that would undermine judicial independence.
