Katherine A. Helm
Stroock & Stroock's Joel Cohen
Are you tired of hearing about the botched handling of the oil spill cleanup in the Gulf Coast? How about the related lawsuit, pitting the Obama administration and environmental groups against the oil industry and its workers, in which a federal judge enjoined the government's moratorium on offshore drilling operations? Well, unfortunately, this bungled affair will be front page news for a while. But we, here, suggest a different take on things.
Some blame the courts for risking additional devastation and potentially exacerbating a stymied cleanup by refusing to reinstate the six-month moratorium on all offshore drilling operations of deepwater wells in the Gulf of Mexico and the Pacific regions. The 5th U.S. Circuit Court of Appeals upheld the trial court's decision that the government had not sufficiently justified the need for the moratorium. In a technical decision denying the government's motion for a stay pending appeal, the 5th Circuit reasoned that the government had failed to demonstrate a likelihood of irreparable injury because no showing had been made that drilling activities were about to recommence. See Hornbeck Offshore Services LLC, et al. v. Kenneth Lee Salazar, et al., No. 10-30585 (5th Cir. Jul. 8, 2010).
And the continued drama flows on like oil. The Interior Secretary issued a new moratorium in an effort to sidestep the injunction. Meanwhile, interest groups like the Alliance for Justice and various environmental groups, who moved unsuccessfully for the district court judge's disqualification, continue to lambaste the courts for allegedly obstructing the government's efforts to prevent another catastrophic blowout. At the head of this fanfare is a document entitled "Judicial Gusher: The Fifth Circuit's Ties to Oil," (pdf) which asserts that at least two of the empanelled 5th Circuit judges should have been disqualified from the case for having represented oil and gas interests while in private practice.
OK, so people are angry, no doubt. We all want the cap to continue to work and the oil to stop leaking into and destroying the Gulf. Any new and high-risk exploratory drilling in the area is probably a bad idea, at least until the current mess is under control. Many believe that deepwater drilling should cease until the bipartisan commission investigating the spill has issued some findings and recommendations on how to improve operating conditions going forward.
But, is it not a little cavalier to advocate for the disqualification of judges who upheld the lifting of the moratorium based on the clients those judges previously represented in private practice? Moreover, and without taking sides on the merits of the district judge's unpopular decision given the outcry over the Gulf calamity, isn't it wrong for men-in-the-street to excoriate the judge and challenge his integrity based on a supposed conflict because he has issued an unpopular decision? What sort of practice do we engage in when we posit that prior legal representations standing alone constitute improper influences on judicial decision-making?
This is no less wrong than when some of the right-wing press pilloried the Justice Department attorneys who had provided pro bono representation of Guantanamo detainees while in their prior private practice. How can we possibly propose to judge judges based on the nature of the clientele -- not even based on the specific clients -- they represented before coming on the bench? Particularly so, when the cited representations were decades earlier: Here, the circuit judges' representations of oil and gas industry clients were between 25 and 40 years ago.
It is simply imprudent for us to question the basis upon which we place faith in the judiciary whenever a judge makes a ruling we don't like. If judging were a democratic event we would cast votes for a verdict; but it's not and we don't. Should a judge be disqualified from criminal cases simply because she had been a career prosecutor before her ascendency? Or if he defended against (or prosecuted) class action lawsuits for a living, is a judge subject to recusal in class action cases generally? A death penalty litigator can't later sit as a judge on death penalty cases? So why should it be different in the BP case, for example, if he had previously represented the oil and gas industry?
To be fair, another cited basis for the presiding judges' alleged impartiality consists of certain of the judges' financial investments in the energy sector. This is a more facially valid objection than prior representations, given the strict statutory requirement that a judge must recuse from a case if she/he has an ownership interest in the subject matter in controversy, and that interest could be substantially affected by the outcome of this case. See 28 U.S.C. § 455(b). These strictures are tight and unbendable for a reason; they create an easy-to-follow bright-line rule. See, e.g., Tramonte v. Chrysler Corp., 136 F.3d 1025, 1030, 1032 (5th Cir. 1998) (the recusal statute has an "unforgiving bite" as it requires disqualification "for even paltry financial interests."). The consequence of this rigid rule, of course, is that it cannot exist outside its own confines. If a judge doesn't have such financial interests, disqualification is simply not required. Not only that, but circuits interpreting the recusal statute have consistently noted that "[a] judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it is." In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir. 1988), citing In re Union Leader Corp., 292 F.2d 381, 391 (1st Cir. 1961).
It seems improper, then, to try and stretch the standard to encompass financial interests in mutual or common investment funds (which the federal statute excludes), or former financial interests that have since been divested, or indirect interests by way of receiving reimbursement for attending a seminar sponsored by a foundation that receives support from companies in affected industries (e.g., mineral and gas industries or the energy sector more broadly). All of those ties were argued in the Gulf oil spill litigation as evidencing judicial bias. Yet, people tend to underestimate their own biases while overestimating the biases of others. So when we argue that judges whose life experiences have things we don't like are self-servingly biased, we have to scrutinize whether "we," ourselves, are entirely objective in making our assessments. At some point, this faulty reasoning will degenerate into little more than a power grab attempt at a judicial mulligan.
Clear-cut recusal standards based on financial holdings are the best prospective standards we've got. Retrospective assessments of judicial bias are of little use in helping judges decide when to recuse. Judges must be given fair warning as to what they must do in their jobs -- to satisfy their recusal obligations, to set aside personal feelings and to apply the law fairly and equally in every case. A post-hoc claim of judicial bias is unhelpful, therefore, but it is also dangerous in that it fails to defend against hindsight bias coming from a sore loser. We do a disservice to the justice system, and to everyone who seeks its protection, when we raise questions of judicial impartiality only when a judge is not sufficiently favorable to us.
Make no mistake, judicial impartiality strongly requires eliminating both actual and perceived biases. The existence or even appearance of undue bias is a death blow for objectivity in judicial decision-making. But, it seems, the many-times-removed financial interests or prior representations do not offend even the broadest "appearance of partiality" standard that requires disqualification when a judge's "impartiality might reasonably be questioned." See 28 U.S.C. § 455(a). The entire judicial process suffers if we use the federal recusal statute as a wild card to eliminate as many influences on sitting judges as possible, which may have been precisely what the administration did, or tried to do, in the Gulf oil spill case.
We believe the 5th Circuit is rightly continuing to reject requests to usurp the discretion accorded district court judges to make recusal decisions in ongoing Gulf oil spill litigation. For example, the circuit court recently refused to disqualify another district court judge from presiding over more than 40 lawsuits (at present) that have landed in that court's lap after many other judges recused themselves based on financial interests. See In Re: Deepwater Horizon, et al. (pdf), No. 10-30631 (5th Cir. July 22, 2010). In rejecting that disqualification motion by BP, the court let stay seated a judge who had owned but divested corporate bonds issued by two of the companies sued in the cases. This was both right on the letter and spirit of the law: An alternative holding could have risked lending credence to a potential judge-shopping exercise by interested parties. See Drexel Burnham, 861 F.2d at 1315 ("the price of avoiding any hint of impropriety, no matter how evanescent, would grant litigants the power to veto the assignment of judges.").
Making a diagnosis of "improper influence" requires a scalpel, not a sledgehammer. Not only is it unrealistic to think we can eradicate all judicial biases, instincts, leanings or interests, however termed, but it is also unwise. We want our judges to live in the real world, so that they can bring their life experiences and common sense to the table when deciding cases. Judges must remain "partial" to some influences, therefore, like the case law, and controlling statutes, and perhaps even basic standards of decency and morality, too. As The New York Times recently cited, former Chief Justice William Rehnquist's view on recusal was that if a justice's mind was "a complete tabula rasa" in relevant respects, it "would be evidence of lack of qualification, not lack of bias."
In the short run, a recusal may seem appealing as a populist notion -- for example, in thinking that a judge who had earned a living representing Big Oil can't possibly give Big Oil's adversary, even the government, a fair shake in a court of law. In the long run, though, lawyers and judges know, or they should know, that we must both subscribe and adhere to predetermined rules for this sort of thing. We don't want judges being required or even willing to make decisions, even recusal decisions, based on a popular sentiment of the moment. Judges need to adhere to the law, pure and simple. Isn't that the way it's supposed to be?
Joel Cohen is a partner in the New York office of Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He teaches Professional Responsibility at Fordham Law School. He is also the author of "Truth Be Veiled," released in July 2010 by Coffeetown Press. Katherine A. Helm, Ph.D., is a law clerk for a U.S. Court of Appeals judge in Washington, D.C. She previously clerked in a U.S. District Court and worked at a large New York City law firm. This column is the latest in a monthly series by Cohen and Helm for Law.com. The views expressed are the personal opinions of the authors.
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