When judges say too much

November 18, 2014

As I reporter, I love when federal judges say provocative things outside of their courtrooms. It’s news if U.S. District Judge Jed Rakoff of Manhattan publishes an article chastising the Justice Department for prosecuting corporations instead of individuals or if his colleague Shira Scheindlin gives interviews about her willingness to stand up to prosecutors. The public benefits when brave judges like U.S. Magistrate Stephen Smith of Houston, who highlighted the government’s secret use of electronic surveillance in a 2012 paper for the Harvard Law and Policy Review, call attention to what they’ve observed from the bench. I also understand that judges, just like ordinary people, want to share (or occasionally overshare) their thoughts in a forum aside from judicial opinions.

I also 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 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.”

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.

As precedent, it cited Hathcock v. Navistar International Transportation Corp, a 1995 decision in which the 4th U.S. Circuit Court of Appeals vacated discovery sanctions against the truck maker and insisted on the recusal of a South Carolina trial judge who had criticized auto companies at a tort conference while the Navistar trial was under way. The brief also mentioned the 3rd Circuit’s mandamus holding in 1992 against a judge who had criticized the tobacco industry and a 2003 Florida federal-court disqualification of a U.S. magistrate who actually gave press interviews about the environmental case he was overseeing.

The 4th Circuit case was the only one of the three to center on a judge’s recusal obligations, so I took a look at the opinion. It turns out that the South Carolina judge’s over-the-top remarks at the conference were just one of his offenses. He had also asked the plaintiff’s lawyer in the case against Navistar, ex parte, to draft a default order against the truck maker and had instructed his law clerk to file an affidavit in response to the recusal motion. It was the combination of improprieties, rather than any isolated offense, that led the 4th Circuit to require his recusal.

There’s not a lot of precedent on recusal, in other words, to discourage judges from saying or writing things that can be construed as biased. To his credit, Judge Bennett recognized that the quotes Philip Morris had selected from his Voir Dire article might “present a colorable claim for recusal” – but only, he said, when they’re read in isolation. A reasonable observer who understood the full context of the article, which wasn’t just about tobacco or even products liability litigation and praised corporate lawyers as well as plaintiffs counsel, wouldn’t doubt his impartiality, Bennett said. The judge also said that his record shows he has treated tobacco defendants and big-firm lawyers fairly.

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.

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I could not get past the gushy girl tone —

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