Where’s the Bias?

March 30, 2012

In a recent case before the Wisconsin Supreme Court, Justice Michael Gableman ruled against the client of a law firm that had provided him with past legal services.  Justice Gableman had been pilloried by the “merit” selection gang, who use recusal rules as a device to silence conservative judges and shift control of courts to the left.  Gableman’s ruling “shows there’s no actual bias going on,” said Rick Esenberg, president and general counsel of the Wisconsin Institute for Law and Liberty.

The Use and Abuse of Recusal Rules

February 9, 2012

The “merit” selection crowd has taken to pushing for what they call “stronger” recusal standards.  As Justice at Stake Executive Director Bert Brandenburg has put it, “if there is a reasonable doubt that a judge can be impartial, he or she should step aside.”  An editorial in the Capital Times of Madison, Wisconsin summed up the attitude:  “ … judges should always recuse themselves from cases where is even a hint of conflict.”

A “reasonable doubt” and “even a hint of conflict” leaves considerable leeway for political gamesmanship.  I’ve long argued that this new recusal campaign is a back door way for the Professional Left to marginalize conservative judges by removing them from cases.  Indeed, Justice at Stake has never hesitated to use recusal rules to try to shift the composition of courts to fit its ideological preferences.

Of course, both sides can play the recusal game.  Which is why it’s amusing to see Justice at Stake contorting itself to defend the decision by openly gay Judge Vaughn Walker to rule against California’s Prop. 8 ban on same-sex marriages – a non-recusal decision that was upheld by the 9th Circuit Court of Appeals this week.  Couldn’t there be a “reasonable doubt” about Judge Vaughn’s objectivity over such a controversial issue and a ballot proposition that affects him uniquely?  If the standard is “even a hint of conflict,” shouldn’t Judge Vaughn have quickly removed himself to preserve public confidence that private opinions would not unduly weigh in his decision?

What say you, Justice at Stake?

For the record, I’m not arguing that Judge Vaughn should have recused himself from the Prop. 8 case.  I am arguing that the hue and cry over recusal rules by Justice at Stake and the rest of the “merit” selection machine is just another way to accomplish their true political goal of shifting our nation’s courts sharply to the left.

By turning recusal standards into a crass ideological tool, Justice at Stake has flung open a political Pandora’s box full of unpredictable and unintentional consequences.  By politicizing the recusal process and shifting from clear standards to mere “hints” and “doubts,” the impartiality of virtually every judge on the bench can be called into question.

New Recusal Rules Pushed in Tennessee

December 8, 2011

With “merit” selection under fire in Tennessee, the Soros-bankrolled campaign is pushing new recusal rules that would give trial lawyers more power to challenge sitting judges and dictate who hears their cases.  Among the groups pushing for these new rules are – surprise, surprise – the Brennan Center and Justice at Stake, each of which receives millions from Soros’ Open Society octopus to push courts sharply to the left.

Wisconsin & Recusal: If First You Don’t Succeed…Try Plan B

August 19, 2011

Having failed in their efforts to keep conservative jurist David Prosser from serving another term on the Wisconsin Supreme Court, the “merit” selection crew is turning to Plan B: get him kicked off important cases.

Following a flurry of communiqués  this week from the “merit” machine – led by Gavel Grab and seconded by JudgesOnMerit  – the Milwaukee Journal Sentinel took its cue and weighed in with an editorial yesterday that argues Justice Prosser should recuse himself from a major First Amendment case due to be heard early next month. 

At issue is the fact that during his election recount, Justice Prosser hired the law firm of one of the attorneys involved in the Supreme Court case.  Of course, Prosser was forced to hire a legal team only because his opponent demanded the recount – at significant expense to Wisconsin taxpayers – despite the fact that Prosser had clearly won a close election.  

While these recusal arguments are cloaked  in the guise of  fairness and accountability, it’s all a sham. Making high-minded demands that conservative jurists should be disqualified from critical cases is a tactic taken straight out of the “merit” selection advocacy playbook:

  • The first step is to try to keep conservative judges off the courts – but Wisconsin voters chose to keep Prosser on the bench.
  • If voters don’t cooperate, time for the next step: keep ordinary voters out of the process of judicial selection altogether and hand these decisions over to “merit” boards stacked with legal elites.  George Soros-backed Justice at Stake and others have been pushing this rock up the hill in Wisconsin for years now – to no avail.
  • Not to worry –if any of these steps fail or if any conservative judge happens to slip by, gag that judge with phony recusal demands.
  • Every step along the way the goal is the same: impose the Left’s agenda on unwilling voters.

While they tut-tut and harrumph, muttering “fairness!” “accountability!” – don’t believe the hype. The “merit” crowd’s aim is as obvious as it is simple:  tip the balance of the court in their favor.  By booting Prosser off this case, the conservative majority would be wiped out and revert to 3-3.    

As I’ve argued for some time now, recusal standards have become a back door way for liberals to marginalize conservative judges in important cases and shape the court to their own ideological ends. 

The recusal issue for state supreme courts has become a new battleground in recent years – particularly as legal special interests have failed to get their candidates on the bench.  Bert Brandenberg, head of Justice at Stake, has made “merit” advocates’ ultimate goal crystal clear.  He called recusal “a battle for the soul of the judiciary 20-30 years from now.”

Prosser has no plans to step down from this case.  More power to him.  If Prosser does not act impartially and transparently, Wisconsin’s voters can get rid of him in the next election.  But ignoring the voters’ will and forcing Prosser off the case does nothing to advance fair, accountable courts.  It only serves to undermine democracy.

Monkey Business with Recusal Rules

July 21, 2011

Jeffrey Hadden of the Detroit News has a great piece on how recusal rules are being manipulated in a back door attempt to reshape courts by sidelining conservative justices.  Hadden points out that a 2009 change in Michigan’s recusal rules – at a time when liberal activists had a temporary majority – allows state Supreme Court justices to remove each other from certain cases.  The Court also shifted the recusal criteria from the rigorous “actual bias” standard to what Hadden rightly calls the more slippery “appearance of impropriety.”  Current Michigan Chief Justice Robert Young warns the new rules risk “weaponizing” recusal motions because, as Hadden puts it, recusal votes can now be easily “manipulated and done in bad faith.”

Recusal Campaign is about Power not Justice

January 25, 2011

Pushing for phony recusal “reform” has developed into an increasingly popular strategy for left-leaning groups trying to marginalize conservative judges.  Last week, the liberal activist group Common Cause asked the Justice Department to investigate whether U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas should have recused themselves from last year’s Citizens United case.  What’s the rationale?  Apparently because Justices Scalia and Thomas spoke at Federalist Society events hosted by Charles Koch, whose foundation is the bête noir of the professional Left. 

What skullduggery did Scalia and Thomas engage in at these events?  Well, Justice Thomas gave a speech about his moving memoir, My Grandfather’s Son, while Justice Scalia regaled the audience with his views on international law.  And what payoff did each speaker receive for his appearance – a bag of cash from Charles Koch, perhaps?  No, apparently just reimbursement from the Federalist Society for the cost of the airline ticket and hotel room.  Sure sounds like proof that Justice Scalia and Thomas tilted their Citizens United decision to benefit the Koch Foundation to me!  Yeah, it must have been that – not their two-decade record of opposing congressional efforts to silence campaign speech that members of Congress don’t like. 

The real offense, of course, is that Justices Scalia and Thomas did not side with Common Cause in its view that First Amendment rights don’t apply to corporations or unions.  Since they can’t sideline a justice for that, they cook up demands for recusal “reform” so they can structure the court in specific cases to suit their own ideological preferences. 

The case is useful, however, because it highlights an emerging strategy of anti-business, pro-trial bar efforts — like the George Soros-financed $45 million campaign to reshape state courts.  The first step is to try to keep conservative judges off the courts by taking judicial selection decisions away from ordinary citizens and handing them over to “merit” boards stacked with legal special interests.  The second step is to gag any conservative judge who happens to slip by with phony recusal demands.  In each instance, the goal is not to produce fairer, more accountable courts, but to impose the Left’s agenda on unwilling voters.

Update on Judicial Recusal

February 1, 2010

The same law.com article I posted on below also reported that the Conference of Chief Justices will meet this week.  High on the agenda:  new recusal standards for judges, which Justice at Stake’s Bert Brandenberg correctly called “a battle for the soul of the judiciary.” 
As I’ve written before, recusal standards have become another vehicle for the trial bar and anti-business groups to try to marginalize conservative judges and remove them from cases.

CA Supreme Court On Recusal: “Mere Appearance of Bias” Not Enough

January 26, 2010

“Merit selection” supporters, treading water in many states in their attempt to eliminate democratic judicial elections, are looking to open a new front in the fight for America’s courthouse.  Their latest strategy is to target judicial recusal standards — turning recusal into a back door way for special interest groups to limit the influence of citizens over judicial selection and shape the court to their own ideological ends.

Two weeks ago, the Wisconsin Supreme Court stopped such an effort in its tracks when it refused to adopt a rule that proposed automatic recusal in any case in which a litigant had made a $1,000 campaign contribution.  The Wisconsin court wrote:

“[campaign] donations, endorsements or independent spending around elections are not enough to force judges off cases.”

And last week the California Supreme Court added its voice to Wisconsin’s.  Law.com has the specifics of the case – here’s the money quote from the article: 

“…Following an ‘exhaustive review’ of ‘a delicate realm of constitutional law,’ the justices said that ‘while a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient…”

When fuzzy “appearance of bias” standards are used for recusal decisions it’s an invitation for unscrupulous trial lawyers to do whatever it takes to remove judges they fear might be unsympathetic to their cases. 

Want proof? Look to Michigan.  The supreme court there recently abandoned century-old recusal standards in favor of vague disqualification rules based on “appearances,” not facts.  Just weeks later, trial lawyer Geoffrey Fieger demanded the state supreme court kick off three justices from the appeal of a case.

Kudos to California and Wisconsin for standing firm.

Letting Trial Lawyers Pick Their Judges

January 11, 2010

Back in November, I wrote about the danger that the fuzzy new recusal standards adopted by Michigan’s Supreme Court would encourage unscrupulous trial lawyers  to try to remove justices they fear might be unsympathetic to their cases.  As if on cue, sleazeball supreme Geoffrey Fieger is demanding that the court remove not one but three justices from the appeal of an upcoming case.

Fieger’s past attempts to sideline justices have been dismissed as the incoherent rantings they are.  Now, however, any group of four Michigan justices can decide to temporarily unseat a colleague (or three) for any reason whatsoever.  The Supreme Court’s action on this recusal request will help decide whether, under the new rules, the composition of Michigan’s top court is determined by Michigan voters or by the likes of Geoffrey Fieger.