Are federal trial judges who write bluntly in law reviews, blogs, etc., “flashers” who expose too much of themselves?

If a federal trial judge writes bluntly in extrajudicial articles, does the judge expose too much of himself or herself such that the judge risks recusal and harms the federal judiciary by punching holes in the myth of complete but insular objectivity?

Photo credit: sylvar. "The Flasher, with trenchcoat closed" per Creative Commons Attribution 2.0 Generic license. No changes were made to the photo.

Photo credit: sylvar. “The Flasher, with trenchcoat closed” per Creative Commons Attribution 2.0 Generic license. No changes were made to the photo.


I have reason to think that this blog may be part of a piece sometime in the future by a respected legal news outlet. I would guess that the article may be critical. If that occurs, I welcome both the attention and the scrutiny. And that brings me to my dear friend, Judge Mark Bennett, a truly wonderful person, a fantastic, but very opinionated, writer of law review articles and a great trial judge.

Mark was recently the subject of an article written by the estimable Alison Frankel, entitled When judges say too much, Reuters (November 18, 2014). The article deals with Mark’s decision not to recuse himself in a products liability case involving a smoker.

Judge Bennett

Judge Bennett

In part, Ms. Frankel wrote:

This homily was sparked by a recusal opinion issued Monday by U.S. District Judge Mark Bennett of Sioux City, Iowa. Bennett is overseeing a former smoker’s suit against R.J. Reynolds and Philip Morris as a visiting judge in Jacksonville, Florida. On Oct. 31, Philip Morris’ lawyers at Shook Hardy & Bacon and Arnold & Porter asked the judge to take himself off the case because of his 2013 article in Voir Dire, a magazine put out by the American Board of Trial Advocates.

Bennett’s article, “Obituary: The American Trial Lawyer, Born 1641-Died 20??,” lauded a lost breed of lawyers who are “perhaps more responsible for our enduring freedoms and the enforcement of our nation’s laws than any other,” he wrote. Through the good work of trial lawyers, he wrote, “American products, from airplanes to scalding coffee, pharmaceutical drugs and scores of others, are safer and kill and maim far fewer Americans.” One of the trial bar’s accomplishments, according to the judge, was that “hundreds of thousands of lives have been spared from tobacco-related deaths and billions have been saved in health care costs.”

She concluded her piece this way:

Considering the case law, I doubt Philip Morris can force Judge Bennett off the case. The company’s recusal brief focused on judges’ roles in jury selection in these tobacco liability cases in Florida, so maybe Philip Morris just wanted to prod Bennett into being careful about fairness during voir dire. (Stanley Davis of Shook Hardy and Sean Laane of Arnold & Porter didn’t respond to email requests for comment.)

Would the system be better served, however, if judges didn’t say things that might cast doubt on their impartiality? I think it would.

I told the judge in an email that I believed Philip Morris was justified in questioning his impartiality. He said (very politely) that the opinion speaks for itself and that it would be inappropriate for him to comment further on a case before him.

I urge you to read the entirety of Ms. Frankel’s piece and the judge’s written decision explaining why he would not recuse himself. What do I think?

First, Judge Bennett was clearly correct as a legal matter. He had no reason to recuse himself. Experienced federal trial judges don’t worry about recusal motions, they are frequently filed but seldom granted. Those are simple legal questions, easily answered as Mark’s clear opinion demonstrates. Moreover, most of the time, we have plenty of judges who can take a case from a colleague if recusal is warranted.

Second, Ms. Frankel makes a more important point that is very much worth remembering. When federal trial judges speak candidly in their extrajudicial writings we take risks. Ms. Frankel explains:

I . . . believe there’s a cost to outside-the-courtroom commentary by judges. I still cling to the admittedly starry-eyed hope that judges aren’t just ordinary folk – that they’re wiser or fairer or at least better at rising above their inevitable biases than the rest of us. I know, there’s plenty of evidence to the contrary. But if I didn’t believe in the legal system I’d have wasted an awful lot of time writing about it. And believing in the system means believing, albeit with exceptions, in the impartiality of the judges who preside over cases. When judges give the public a reason to doubt their impartiality, whether it’s through their acceptance of campaign funding or their intemperate comments, faith in the system erodes.

This is matter of balance. It is not an easy balance to strike. But, I know this: Given the present state of affairs in the federal judiciary, transparency is more important than the fear that faith in the system may erode if we express ourselves too clearly, too forcefully, and, occasionally, too bluntly in law reviews, blogs and the like.

There will be times when we falter. Indeed, Ms. Frankel fairly links to my ill-advised attempt at humor (On being a dirty old man and how young women lawyers dress) while making points I thought were worth making about the appearance of women trial lawyers in the courtroom. That admitted, judges like Mark Bennett do the public (and the bench and bar) a great service “when they get real.” Like the “flasher” pictured above, we can do so without significant harm to the federal judiciary so long as we remember to keep our trench coats closed.




45 responses

  1. Having read Judge Bennett’s recusal order, I think he should have recused himself. He essentially argues that the test for recusal is whether he can make a straight-faced argument that, taking the facts in the light most favorable to himself, he could not be perceived as biased. That is simply the wrong test. There is no question that his specific comments with respect to tobacco-related litigation cannot be mitigated by other generic, non-tobacco-related comments, showing that he affords large companies due process. Under any reasonable recusal standard, I think he should have stepped aside here…

  2. I agree with observer. if H. Lee Judge Sarokin’s non-extra-judicial statement about the “king of concealment” statement was sufficient to bounce him off a tobacco case, see Haines v. Liggett Group Inc., 975 F.2d 81 (3d Cir. 1992), then I think Judge Bennett’s statements could cause a reasonable observer, aware of all the facts, to question his impartiality.

  3. I respectfully disagree with Observer and Ms.Frankel, and agree with Judge Kopf (as I usually do). One out of context quotation does not demonstrate bias. The “obituary” article was meant to praise a much-maligned and vanishing breed, and did so eloquently. Writing of this nature and quality from our Federal judiciary should be encouraged, not chilled by fears of forced recusals.

  4. The question is not whether he is biased; I very much doubt he is. It’s whether a reasonable observer could nonetheless harbor doubts about his impartiality; I think the answer is yes. Justice must satisfy the appearance of justice.

  5. Observer and the.colonel both question the judge’s “impartiality.” It would help if we knew their definitions of the term (there have been hundreds of scholarly articles attempting to define the word). I always thought it meant that a judge based his or her decisions on fact and law vs. selling a decision to the highest bidder. Of course, anyone who has sat through hundreds of trials knows (at least at the district level) that some judges are known as hanging and some are known as doves. Some act like they are the smartest in the room (mini-Scalias or mini-Posners) complete with their obvious political leanings. Judges who get the most respect, IMHO, are the ones who make the most rational, thoughtful and fair decisions vs. the arbitrary and non-fact based. Plenty of both out there, at least at the district level.

  6. Once again Judge Bennett’s order like other federal court orders and Kim Kardashian’s hind quarters has been blocked by the security setting on my computer. Absence of information never stops me, I am retired. The trouble with the reasonable observer test is in the definition of that observer, do we attribute to the observer some knowledge of the different roles of judge and jury and a modicum of knowledge of reality, remark a common place unlikely to have any possible impact on what judge will do, is the reasonable observer a version of Lord Justice Scrutton’s man on the Clapham Omnibus, maybe a different answer. I prefer version one, but can understand fear that not following two might contribute to loss of sense of fairness of courts, though I am dubious of this kind of pop social explanation.

  7. Yes but the reasonable observer has to be fully informed about the facts on which the recusal request is based. That’s why Judge Bennett is probably in the clear. Plus, the doubts of the reasonable observer need to be “significant”; not just reasonable (Instinctively I think there is difference but I admittedly can’t articulate it on the fly).

    Regardless of what the standard is (or, in realist terms, how the standard is applied), though, I think there is more than good cause for the standard not to be anything that would warrant recusal here.

    Recusal here would only multiply the number of stupid recusal motions, invite litigants to publicly question impartiality (a self-fulfilling prophecy?), and encourage judges to never say anything interesting. And to what end? I mean, really. Speeches like Judge Bennett’s only cause hypothetical reasonable people crises of confidence–not actual reasonable people. And as for the actual non-reasonable people, I think it neither desirable nor possible to kowtow to them.

  8. It was definitely funny.

    “Philip Morris said that the article, in which Bennett also lampooned ‘litigators’ (as opposed to trial lawyers) as ‘paper tigers (who) never work alone, always traveling in packs,’ would lead a reasonable person to question the judge’s impartiality. Under the federal rules for judicial conduct, the tobacco company said, Bennett should step aside.”

  9. I read the Order. Judge B. certainly states and analyzes the issue correctly (he always finds and knows the applicable law) and his decision to not recuse himself is defensible, although my “gut” tells me otherwise – there is a bit of an “odor” arising from the entire scenario. I have a visual image of the Judge almost breaking his arm as he pats himself on the back for being such a good and smart fellow. That is not a positive judicial image to this “reasonable observer.” Just sayin’ . . . . .

  10. Having litigated in approximately 20 federal courts throughout the USA, include Judge Bennett’s court, I am surprised that anyone could think that Judge Bennett would not error on the side of caution and recuse himself if necessary. He is one of the hardest working Article III judge I have had the pleasure of appearing before. If anything, his prepardness causes a seasonable litigator some stress that he is not as prepared as he should be on an appearance.

  11. I’m with Gamso:

    I think lack of candor by judges is a real problem, and that the system would be greatly improved if we all candidly voiced our opinions, judges included. Would this lead to a lot more recusal motions? I think so, and of course I disagree that they are always “easy” although I’m sure they sometimes are. Clearly they should be granted more often.

    And without meaning any disrespect, Judge, your candor is perhaps the only thing I like about you. There are a lot of things I can imagine bringing into court that I wouldn’t want to see you be the judge for, and probably some few things that if I got stuck with you or someone like you I’d ask for another judge. But at least you’re fair enough to tell me what I’m up against so we can fight about it, if not fair enough to actually step aside when you ought to.

    Although maybe you are. I only know you from your blog and a few wayward opinions I looked up.

  12. Would the system be better served, however, if judges didn’t say things that might cast doubt on their impartiality? I think it would. argues Ms Frankel.

    In what way, exactly? A judge is partial or impartial in a particular case, or generally, regardless of whether he “says things” or not. If he remains silent (and remaining silent is the only way I can discern for not saying things that “might cast doubt on impartiality”), how can we know? If he remains silent, how can we form an argument for his recusal or for an appeal?

    If he remains silent, how will others learn from him?

    Judges should keep speaking their piece, and the more plainly, the better.

    Eric Hines

  13. Badgerbacker,

    The only problem that I have with your comment is that you are a “Badgerbacker.” C’Mon Man! That’s just cruel.

    All the best.


  14. Judge Kopf: “If a federal trial judge writes bluntly in extrajudicial articles, does the judge expose too much of himself or herself such that the judge risks recusal and harms the federal judiciary by punching holes in the myth of complete but insular objectivity?”

    Judge Kopf, that horse left the barn a long time ago. No knowledgeable individual can say with confidence that our supreme and federal appellate courts are objective guardians of the rule of law, for as Ms. Frankel concedes, “there’s plenty of evidence to the contrary.” The myth persists only in the minds of the ignoranti. Frankly, I would have a far easier time believing in the Easter Bunny than in an honest, diligent, and impartial appellate bench, as there is too much evidence to the contrary.

    Ironically, this is why we need voices like yours, Judge Gertner’s, and Judge Bennett’s. Judges need to be held accountable by bench and bar, as the late Judge Roger Miner advocated. The bar has been too thoroughly cowed to speak, and the bench has become lazy and indolent. If you truly care about this institution you claimed to love, you do not have the luxury of remaining silent. And while I have lost respect for our judiciary as a whole, comments like these by Judge Bennett buoy my faint hope that that Titanic can somehow be kept afloat:

    Abstract: Nearly seventy-five years after its birth, the time has come to bury summary judgment. The funeral should be swift, dignified, and joyous. The autopsy would reveal that the cause of death was abuse and overuse by my federal judge colleagues. Summary judgment abuse and overuse occurs in all types of cases.

    [from the actual article] The time has come to recognize that summary judgment has become too expensive, too time-consuming for the parties and the judiciary, and too likely to unfairly deprive parties—usually plaintiffs—of their constitutional and statutory rights to trial by jury. I am willing to throw out the baby with the bathwater because the culture of unjustly granting summary judgment is far too ingrained in the federal judiciary to reverse course. There is simply no empirical evidence that summary judgment is efficient or fair.

    Mark J. Bennett, Essay: From the ‘No Spittin’, No Cussin’ and No Summary Judgment’ Days of Employment Discrimination Litigation to the ‘Defendant’s Summary Judgment Affirmed Without Comment’ Days: One Judge’s Four-Decade Perspective, 57 N.Y.U. L. Rev. 685, 686 (2012/13), available at (emphasis added).

    This abusive procedural device is how judges have learned to ration our constitutional “rights” in the way Judge Gertner so bitterly complained of. We need the Posners, Kopfs, and Bennetts to stand and be counted. If it means the occasional recusal, so be it. If it means ridiculous criticism from jackasses who call themselves “ethicists,” even better. You have lifetime tenure during good behavior, which affords you a unique liberty to speak. If you are going to defend the institution, you have to be able to call out those who visit shame upon it.

  15. Julian Reasonable describes the person holding the belief, and it is reasonable because he holds it, it is a belief in a bias, significant describes the impact the bias will have in the case. Reasonable person is always hypothetical. If you take the worry about community faith seriously you would lean toward a model of normal folks without much expertise reading a news story, if you do not buy that worry and think some actual risk of the process miscarrying is required you will want a more knowledge. I agree that the standard ought to be close to something close to a well informed and system wise person. I do not think anyone with knowledge of law and politics thought Scalia hunting with the former VP while case was pending about his energy study would influence his decision, but a lot of ordinary folks would not buy that.

  16. I think recusal decisions should be taken out of the hands of the judge who is being challenged and preferably, be decided by a judge from another Circuit. If a judge is partial and wants to use it as a vehicle for promulgating his or her views (e.g., Judge Kozinski, in Hart v. Massanari), he or she is virtually certain to improperly decline recusal in all but the most egregious of cases.

    The conclusion may or may not be flawed, but the procedure certainly is.

  17. Judge I dont know if I understand. I believe there is a difference between law and politics, and while I couldnt give a full account of the difference between the two I would have considered sensitivity to the views of the people something essentially political.

    When a judge recuses himself, not for any good legal reason, but simply to satisfy the normal folks of his country, isnt he acting politically? I want to see judges remain independent of what people think, not remain independent in the judgement of the people.


  18. I think it should be expanded to all recusal questions, including those judges identify themselves. And yes, most lawyers are terrified of the potential for judicial wrath.

  19. Judge, while I like your blog, sometimes you, uh, how should I put this, you say some things that a federal judge shouldn’t say in public.
    On the other hand, I sometimes admire your tact. For example, take that post about the way women lawyers ought to dress. This week we’ve heard a lot about Matt Taylor and Shirtstorm. That guy made all the detractors of your post look like hypocrites and you were too much of a gentleman to point that out. .

  20. Guest,

    I know what you mean about saying things that are ill-advised. Perhaps it is narcissism. See my post for today, as a possible example.

    Id, ego, and super-ego are the three parts of the psychic apparatus defined in Sigmund Freud’s structural model of the psyche. I always have the excuse that my id got the better of me. The super-ego (Über-Ich), that is, being a good boy, dictated most of my life–I still pull out chairs for women when they sit down at the dinner table. The older I get, the more tiresome the super-ego has become. A little id never hurt anyone, and once in a while, the result of the id is both revealing and interesting.

    All the best.


    PS Is this comment f—ing serious? I think so, but one can never really know.

  21. Chadtech,

    I don’t think a judge should recuse simply to satisfy the public–the Caesar’s wife approach is improper. There is a fixed legal standard. It is basically this: Would a reasonable person, and that includes a lay person, conclude that the judge could not act impartially if the reasonable person knew all the relevant facts. If so, recusal is required under a particular federal statute. All the best.


  22. Judge, Better the occasional slip than there but for the grace of God goes God style of judge. Besides NE is too small a State for that approach, we all know.

  23. I look at it this way: You can’t do any more damage to the reputation of our judiciary. Everyone sees it as a political entity, including Linda Greenhouse. And on November 14, you joined the chorus. We have all surrendered.

    Case in point: the House’s ACA suit. The minute it was assigned to a Bush partisan judge, it was “game over,” and everybody knows it.

  24. What I love is that while the statute expressly refers to “justices,” the Justices openly and notoriously disregard the statute. “Law” is for lesser men.

    The practical test for recusal is that it is an inverse function of how badly a judge wants to weigh in on the case. Scalia was going to vote for his good friend Dick no matter what, but when you take a $5,000 seat on a private jet to go to a secluded place where you can have ex parte communications, the optics are not good. By contrast, I also know of a case where a judge recused herself on the ground that one of the parties was “a childhood friend,” whom she literally hadn’t seen more than once in forty years. In short, she wanted no part of that case, and was looking for an excuse to beg off.

    Ditto, the Clarence Thomas situation during Bush v. Gore. His wife is vetting candidates for the new Bush adminstration, and he does not appear to have been compromised? Thomas is a partisan hack, so he wasn’t influenced, but the appearance that he takes retainers is enough to meet the appearance standard.

    And then, there is Kozinski’s participation in Hart v. Massanari. Don’t tell me that THAT case was randomly assigned.

  25. I believe that judges, such as Judge Bennett and Judge Kopf, contribute in a very significant manner to our legal system when they write about legal issues based on their experience and knowledge.

    As to the issue of recusal, it is useful to look at opinions cited in the motion for recusal. Those opinions include Jenkins v. McCalla Raymer, L.L.C., 492 F.App’x 968 (11th Cir. 2012), and Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36 (4th Cir. 1995). The Jenkins opinion also cites In re Sherwin-Williams, 607 F.3d 474, 478-79 (7th Cir. 2010), which held that a judge is not automatically required to recuse himself because he wrote a law review article on a subject at issue in the litigation.

    In addition, the discussion in the Jenkins opinion of the Hathcock case notes that the judge’s remarks at a seminar occurred while a jury trial on the issue of damages in the auto products liability case was pending.

    These points seem to have been omitted from the motion for recusal.

    The article at issue in the recusal motion was first published in the Spring 2013 edition of LITIGATION,
    an American Bar Association publication.

    According to the docket of the case involving the recusal motion, Judge Bennett was assigned to the case on July 16, 2014. Thus, the article at issue was written long before Judge Bennett was involved in this case.

  26. Judge, the reasonable person is more a mnemonic or heuristic than a fixed standard, and using an ideal that includes the laity does not tell us the ideas the dear lay person about the legal system, and the issue is the ability of a normal judge to set the bias aside not the actual judge. Normal judge being an obvious construct. Moreover times change with the number of spouses with careers of their own I would give Justice Thomas a pass on Mrs. Thomas’s activities as long as they were not a secret, and the conversations between Judge Kaufman and the USAty. about the Rosenberg sentences would not pass muster today, whatever the standards were then. I am afraid that at least at the Federal Appellate level the public criticism of the courts may make Caesar’s wife a necessity.

  27. (Same Guest as before)
    Judge, You’re darn tootin I was serious. Shirtstorm made you squeaky clean. If Matt Taylor ever shows up in the federal building, invite him back into chambers for a beer, and not that Pabst stuff your clerks are always drinking.

  28. Judge Kopf–

    I think the issue is more nuanced than some of the dialogue here suggests.

    You write of the importance of “transparency” in the federal judiciary. Assuming that “transparency” means demystifying the federal courts and allowing members of the public greater insight into how the courts work, “transparency” is indeed an important goal. But I think it is rather a different matter than the subject you’ve teed up above. Judges can be more “transparent” by speaking and writing to educate the public about the courts in ways that are in no way controversial.

    But I think you’re asking about a different sort of extracurricular judicial writing. The sort of writing you’re considering is not simply demystifying — it’s staking out sometimes controversial opinions in ways that don’t illuminate the courts so much as they show that some of our judges have strong views about other courts and the lawyers and litigants who appear before them. You’ve written on this blog about lawyer attire and whether the SCOTUS should be slower to grab up cases, and you assured some headlines with your colorful writing (not that I think that was your goal). Judge Bennett wrote about lawyers with different sorts of practices and clients, and he gave some to believe that he thinks better of some lawyers than others.

    I’m not prepared to offer a view about whether your blog or Judge Bennett’s articles cross some magical recusal line, but I don’t think they can be justified simply by invoking the unfortunately overused term “transparency.” A judge could meet that goal and stay a country mile from either of the two sections of the Judicial Code that deal with recusal. (One of the reasons I’ll keep some distance from Judge Bennett’s remarks is that my partiality might reasonably be questioned. I’m probably one of those paper-tiger litigators he identifies. I’ve apparently slipped up, though, because I keep going to court by myself and leaving behind the army of associates who should be carrying my briefbag and buffing my elbows during recesses.)

    Thanks as always for teeing up a wonderfully thought-provoking subject. Perhaps some time we could debate Judge Bennett’s position regarding summary judgment.


  29. David,

    Great comment. Great comment. Great comment.

    If I repeat the same thing three times, that annoying redundancy simply shows that I lack the skill to add emphasis in some other way. You work with what you have.

    I agree that “transparency” has become hackneyed when used in writing, but I don’t agree that it is overused in practice, particularly by federal judges. What I see as the real problem, and the author of the article highlighted it, is the question of balance. How much is too much? I have no good answer for that but to say I hope that most of the time I (we) will know it when I (we) see it. But this blog (very much an experiment) contains several examples that stand as stark proof that I am frequently near-sighted when it comes to the question of balance.

    All the best.


    PS As you know, the ideal of balance has been around a very long time. Sophrosyne is a Greek philosophical term meaning healthy-mindedness and from there self-control or moderation guided by knowledge and balance. To remind myself of that ideal, I keep my warn copy of the writings of Plato within reach of where I most often peck out the words of this blog. I probably should open it more often.

  30. I’ve been musing over whether I wanted to tell this story. David Fine’s comment convinced me that I should.

    Some years ago, when I was Legal Director of the ACLU of Ohio, we sued Lucas County (as Judge Kopf knows, that’s where Toledo is) in federal court. The random draw assigned the case to a district judge who informed me and the local prosecutor (who by Ohio law represents the county in civil cases) that he was a member of the ACLU. He offered to recuse himself.

    I took no position on his offer believing (I think rightly) that on those facts it should be the county’s decision. “We’ll waive any conflict,” said the prosecutor who knew the judge, respected his openness, but also respected his ability to follow the law. Ultimately, after discovery and depositions, that judge granted summary judgment for the county. I was disappointed, of course, but it was probably the right legal call.

    The other day I was in front of that same judge for sentencing in a criminal case. Among other things, we had litigated through multiple hearings and numerous briefs, to a suppression issue. We’d lost. “I believe,” the judge had said, “that the search in this case was unconstitutional. The Supreme Court disagrees with me.”

    The question, as I tried to explain in the blog post JMRJ kindly cited the other day (, isn’t whether judges have opinions. Of course they do. The question is whether they should pretend otherwise. The answer, it seems clear to me, is that they should not.

    Those who wish that judges would pretend not to be human are really asking that judges lie, either by omission or commission. It’s a dishonesty we seem to require these days of those who are nominated to the Supreme Court bench. It’s a requirement that should, I think, be a disqualification. Honesty, even if sometimes intemperate, should be understood to increase respect for the judiciary, not decrease it.

    The issue, after all, is not whether judges believe things. It’s whether they can set those beliefs sufficiently to the side and decide the cases in front of them on their merits.

  31. Jeff,

    I am glad that you commented. A specific example is often the best way to illustrate an abstraction.

    I think I know the judge in Toledo that you speak about and, if so, I understand completely why the County said, “forget it.” One of the things that strikes me is that the federal trial practice more and more involves lawyers and judges who don’t know each other. The case involving Mark Bennett is an example. Had the lawyers who moved for recusal practiced before Mark, I doubt they would have filed the motion.

    Secondly, you are quite right, in my opinion, to stress the importance of the judge letting lawyers in on the judge’s thoughts. At the very least, if the judge is an open book the lawyers have a clear idea what they are up against. A lot of trial judges (especially me) have loony ideas. In my view, the trial judge who hides his or her craziness is the one to fear the most.

    All the best.


  32. It was hardly a compelling motion. The Hathcock case they cited was barely superficially similar — if that. (Nor is this really analogous to Sarokin, which I don’t believe involved a motion to recuse, nor did Judge Bennett comment on the credibility of lawyers, nor made reference to his “own familiarity with the evidence, etc.) Judge Bennett’s comments might half-raise an eyebrow; but, frankly, they’re hardly the sort of thing that troubles you unless you want a different judge to start with. It’s certainly not a “shall recuse” situation, and there’s a presumption against disqualification (or at least for impartiality). And the footnote, re his “distaste for large law firms,” silly and pointless.

  33. “We need the Posners,…”
    How is it that in a post on the topic of judges and their internal filters, this is the only mention of RP?! (Not to mention a certain judge on the 9th Cir. of Romanian-descent who once appeared on the dating game.)

  34. Jeff:

    Like Judge Kopf, I probably know which N.D. Ohio judge you mean (I’m originally from Lucas County), and I’m not surprised the judge was candid and impartial.

    I think you make a good point. No one should entertain the fiction that judges are blank slates with no personal opinions.

    But I don’t think that acknowledging that judges are thinking, sometimes opinionated persons necessarily leads to the conclusion that those judges should write and speak about those opinions. The issue is only in part about whether judges can in fact set to one side their personal views. I’ve no doubt most of them can. I’ve seen it many times.

    But it’s also important that lawyers and their clients not have to wonder if the particular judge deciding their case is one of those who can set aside personal opinions. That’s why one of the recusal statutes (Section 455) calls for recusal when a judge’s impartiality “might reasonably be questioned.”

    As Judge Kopf notes above, there is a balance. I don’t pretend to know precisely how these interests should be weighed.


  35. I don’t see how this works.

    You acknowledge that judges, as thinking human beings, have opinions, including I assume about matters before them in court. You further acknowledge that most judges can set aside those opinions and do their jobs.

    But then you say [I]t’s also important that lawyers and their clients not have to wonder if the particular judge deciding their case is one of those who can set aside personal opinions.

    How does whether a particular judge has spoken an opinion aloud impact that wondering? More positively, wouldn’t you be able to better assess his capacity if you knew what those opinions were that he’s setting (or not) aside?

    If he is silent, and you can’t learn his personal opinions, given that you’re wondering whether he can set them aside, don’t you also have to wonder about his motivation for keeping them hidden? Must his hiding, of necessity, be to avoid appearances of non-objectivity? Might not the range of motives also include that the opinions are unsavory, or that the judge–your judge–wants to have the case so he can rule on it “properly?”

    Eric Hines

  36. Eric:

    I take your point, but I think it assumes too much.

    It assumes that a judge who keeps his opinions to himself is hiding those views. Many judges choose not to share publicly their opinions for a host of very good reasons, including the one I note below.

    I think you also assume an equivalence between real bias and reasonable questions about impartiality. But they’re different. The first is about reality. The second is about appearance. Both are important because no one but the judge knows for sure about real bias.

    Consider a hypothetical. A criminal defendant is charged with killing a puppy. The trial judge is one of those who can set aside his personal views and dispense justice fairly. However, the judge writes a monthly column for Canine Quarterly in which he regularly argues that canicide should be a capital crime.

    While in reality the judge is not biased, the defendant cannot know that. He can’t read the judge’s thoughts. All he knows is that this judge wrote that dog killers should be executed. Might the defendant reasonably question the judge’s impartiality? Sure. Might it have been better for this judge to keep his thoughts to himself? Absolutely.


  37. But of course there is no rule, and cannot be, about when impartiality “might reasonably be questioned.” Frankly, every issue that turns on what a “reasonable” person might think or believe or react is problematic since the hypothetical “reasonable man” is, in actuality, the judge.

    My point was not that judges should all be writing blogs or law review articles or op eds or whatever expressing their views on whatever strikes their fancy. But when judges do write those things or speak them or otherwise communicate openly about them, They are revealing who they are. That’s not exposing too much of themselves” (which is the question with which Judge Kopf began this). They are revealing who they are. That’s not a bad thing, though it may, certainly, in some instances, lead a party to seek (and sometimes to obtain) recusal, an appropriate and not problematic outcome. At other times, of course, it may lead to removal from office – also perhaps not a bad outcome.

  38. David,

    It assumes that a judge who keeps his opinions to himself is hiding those views.

    I made no assumption; I just listed a variety of reasons a judge might have for keeping his opinions to himself–reasons I suggest you, as you worry about his bias, not only can’t discount, you can’t know. However, those reasons become N/A if he states his opinions.

    I’m also assuming no equivalence between bias and appearance of it; of course they’re different. However, from the outside looking in, you can’t tell the difference; as you say, only the judge knows for sure (and I suggest that in a lot of cases, the judge doesn’t know, either). Some clarity is added when the judge says his opinion out loud.

    Consider your hypothetical: it would be a strange lawyer–and a puppicide even more strange than just from his selection of a murder victim–to think a judge isn’t biased against butchering puppies. Leaving that aside, though, and going to your point, this defendant (and I suspect the lawyer I’m likely to ask to represent me) would want to know that he writes for CQ and thinks canicide should be a capital crime. He most likely has to get to the sentencing phase before that bias comes into play, though, even should he not be able to set it aside. And with his opinion overt, I have a better chance of assessing his objectivity at sentencing (here leaving aside RGK’s favorite sentencing guideline straightjacket).

    In my view the absolutely is that the judge should have spoken his opinion out loud in CQ.

    Eric Hines

  39. Yes, if the trial involved issues of whether trial lawyers are heroic or not, then recusal might have been appropriate. But, simply recognizing benefits of *some* trial lawyers in *one* particular area of law does not render him biased in the view of a reasonable observer. I think the real criticism is that in reflecting his views, he indicated some potential political bias.

    Regarding the larger question, do federal judges implicate some future recusal motion by blogging or speaking frankly? Well, frankness about the business of law is something all of us should engage in from time to time. If in doing so, a judge indicates a predilection toward an outcome in a lawsuit, then such a judge should probably not be a judge. I find Judge Bennett’s remarks to be appropriate regardinmg the demise of the trial lawyer. That demise speaks to the changes in the legal system over the past few decades. I would think most judges would have some opinion about the demise of trials.

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