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Why Aren't All Judicial Recusal Lists Public?

posted by Adam Levitin

Judges sometimes have to recuse themselves from hearing cases because of financial or personal interests. Some of those conflicts can be spotted in advance, and judges will have standing recusal lists filed with the clerk of the court to keep those cases from being assigned to them in the first place. Of course, these recusals can be weaponized:  if there are two judges in a district, and I know that the son of one is a partner at local law firm, I can hire that firm as my co-counsel and ensure that the case will go before the other judge.

I got interested in this issue precisely because it enables judge-picking in two-judge divisions or districts. Some courts have their recusal lists up on the court's website. Others do not publish it. I was surprised today to be rebuffed when I asked the clerk's office for the Bankruptcy Court for the Southern District of Texas about getting the recusal list for the two judges who presided last year over half of the large, public company bankruptcies in the entire nation.

I wasn't given an explanation of why it isn't publicly available. As far as I can see, it should be. Parties should have a right to know why their case got assigned to a particular judge, not least because if the case assignment was the result of another party deliberately conflicting out a judge that might be grounds for seeking some sort of relief.  Perhaps there's some sort of privacy concern I don't see, but it strikes me that as a matter of course, all judicial recusal lists should be public and published. 

But this also brings up another matter, which is the variation in practice among courts on a range of issues. It's beyond me why there isn't much greater uniformity in administrative practices among clerks' offices. As I've been crawling through courts' websites, I've been struck by the lack of uniformity on all sorts of things (e.g., some courts' ECF systems include time stamps, and others don't). The decentralized nature of the court administration doesn't strike me as optimal or even the result of a lot of thinking, but more the outgrowth of traditional local fiefdoms. It doesn't make a lot of sense in an internet-driven age with national practices. 

Comments

I can't answer all the questions Prof. Levitin raises (beats me why different clerk's offices operate differently), but I can say this. Every federal judge must file an annual financial disclosure report. The report is quite detailed and shows many of a judge's relationships and all of a judge's financial interests. The reports themselves aren't public, but several legal publishers make a practice of publishing the reports. (I know this because every judge is notified when a report is requested.) So much of the information Prof. Levitin would like to see on court web sites is in fact available, if not on the web sites themselves then elsewhere.

Thanks Judge Goldgar. The financial disclosures are helpful. They'll show if a judge's old partnership interest is still being bought out, but they don't disclose conflicts due to familial relationships. I was first clued into this judge-picking tactic by an ex-Kirkland attorney who was familiar enough with it that he was aware that one of the Houston judges had a son who is a partner at a firm that is frequently local counsel in bankruptcy matters. I figure a recusal list will show any harder to find relationships--spouses, children with different or common last names, children in-law, maybe even mechutonim (affinity or consanguity within the third degree, I think).

There are indeed privacy concerns -- and those translate into security concerns. I understand that a judicial position makes one's financial life public in a way that it wouldn't otherwise be, but I'm not keen on having the names of my family members splashed across the internet. The suggestion that these concerns are less than legitimate is naive. Perhaps the participants in large chapter 11 cases are unlikely to threaten or harm a judge or a judge's family (although you never know), but debtors and even creditors in smaller cases are another matter. And let's remember that those cases are the vast majority. Cases like Purdue Pharma are the exception, not the rule.

I'm not sure that there's any right to privacy regarding the existence of familial relationships, particularly for a public figure like a judge.

The security concerns for judges are very real, but I'd submit that in this Internet age it doesn't take a lot of work to discover many relationships, so I don't think keeping recusal lists private is doing much for judicial security.

Also, fwiw, I suspect Purdue Pharma is more akin to the consumer cases--there have been a lot of angry hand-written letters from opioid victims and their families to Judge Drain showing up in the docket. I myself was on the receiving end of an antisemitic email raging that I was (somehow) delaying payment to someone claiming to be a Purdue creditor.

We're not talking about "rights" to privacy in the constitutional sense or any other rights one might enforce in court. We're talking about balancing privacy concerns against security concerns. (The annual financial disclosure report judges file does just that, requiring judges to name investments but only provide ranges for the dollar amounts.)

To some degree, the balance has to be struck in a way that trusts federal judges to do the right thing and keeps the judges, their spouses, and their children alive and in one piece. So, for example, you can absolutely rely on me to disqualify myself if my nephew's law firm appears in a case, even though I haven't the slightest intention of identifying him or the firm.

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