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Recusal Statutes Balance the Scales of Justice |
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Recusal Statutes Balance the Scales of Justice |
The following letter was submitted to senators of the 106th U.S. Congress.
Two responses were particularly encouraging.May 10, 1999
Dear Senator:I urge you to help draft legislation to correct an intolerable state of affairs that is prevalent in a number of our nation's universities. I refer to the practice of using adjunct professors, who are also judges, to preside in civil cases in which the university is a defendant. On occasion, full courses are taught by these professors.
While a reasonable person would regard this practice as unethical and question the impartiality of any judge who is closely associated with a defendant university, recent rulings by the Fifth Circuit Court of Appeals have made it clear that, as long as no law is broken, ethical considerations alone do not suffice to regulate judicial conduct. Thus, legislation is needed to rectify this situation.
To illustrate the point, in Case No. 99-05-372-0118, the Fifth Circuit found it acceptable for a federal judge, who was an adjunct professor and who also sat on the board of a university research center, to preside in a lawsuit brought against the university by another professor without informing the plaintiff of the judge's association with the defendant. This behavior clearly violates Canon 3 of the Code of Judicial Conduct.
The new legislation would make it illegal for a judge, who is an adjunct professor at a defendant university, to conceal his association with the university, and would require the judge to recuse himself from cases in which the university is a defendant.
Equal justice under the law is a goal that can be achieved only when court proceedings are presided over by a neutral and detached judge. This legislation will be an important step toward maintaining public confidence in the legal system.
Yours truly,
Carl Bernofsky
Response In his reply of May 24, 1999, U.S. Senator John Breaux (Dem., LA) indicated that he would be receptive toward legislation "...establishing a presumption of conflict of interest and automatic recusal for judges... [who are] ...adjunct professors presiding as judges over civil cases in which the school at which that professor teaches is named as a defendant."
In her reply of July 1, 1999, U.S. Senator Mary L. Landrieu (Dem., LA) stated, "I will certainly be pleased to look into this matter for you, and have taken the liberty of contacting the appropriate officials, here in Washington, to request a report." The letters from Senators Breaux and Landrieu are reprinted as Appendix A10-A11 and A12, respectively, in: "Petition for Writ of Mandamus to the U.S. Supreme Court" (Case No. 99-372).
(On October 4, 1999, Senator Landrieu forwarded the report she received from the Administrative Office of the United States Courts, which quoted the standard for judges who are adjunct faculty at law schools, taken from the "Guide to Judiciary Policies and Procedures.").
Outlook
See sample letter [PDF] of April 28, 2006 to U.S. House and Senate Judiciary Committee members. See sample letter [PDF] of March 8, 2007 to U.S. House and Senate Judiciary Committee members.See sample letter [PDF] of June 3, 2016 to U.S. House and Senate Judiciary Committee members.Between 1999 and 2006, 10 sets of letters with enclosures were sent to all members of the U.S. House and Senate Judiciary Committees. No response was ever received — not even an acknowledgment. Committee members have a responsibility to serve citizens of the United States who have legitimate concerns that relate to the Judicial Branch of government. Their insensitivity to issues brought to their attention by citizens creates discontent and encourages reform movements.
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