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Adverse judicial orders are a reality for every lawyer. The possible responses range from acceptance, to appeal, to downright anger in the case of orders that, in the lawyer’s mind, are unduly harsh or critical. Rarely, though, does a lawyer take the extraordinary step of seeking the judge’s removal from a case based on an adverse ruling. Yet that is precisely what the U.S. government recently did, and last month the D.C. Circuit U.S. Court of Appeals gave the government exactly what it wanted. A unanimous panel of the D.C. Circuit ordered the removal of U.S. District Judge Royce Lamberth from Cobell v. Kempthorne, the decade-long litigation over the federal government’s admitted mismanagement of American Indian trust accounts. For some, particularly the government parties and their lawyers, this decision undoubtedly is seen as a victory. In my view, it’s nothing short of a tragedy. Not only is the court’s July 11 removal order wrong, but it also threatens to damage the essential independence of this nation’s federal judiciary. A bit of background on Cobell v. Kempthorne: In the 19th century, the United States took title to various Indian lands and thereby assumed a trustee’s role for certain tribes. Ten years ago, several members of those tribes filed suit against the secretary of the interior and others. The suit alleged that the government had breached its fiduciary obligations, lost critical documents, and converted trust assets to its own use. After an extensive trial, Lamberth found that the federal government had breached its duties, ordered it to come into compliance, and retained jurisdiction over the case, requiring the government to file quarterly reports. The 1999 decision is known as Cobell v. Babbit (this case has outlived the tenures of several secretaries of the interior). The D.C. Circuit unanimously affirmed Lamberth’s decision in virtually all material respects in Cobell v. Norton (2001). The ensuing five years have seen protracted litigation over implementation of the government’s fiduciary responsibilities. The events precipitating Lamberth’s removal stem from a July 2005 decision. In that decision, the judge ordered the Interior Department to include a notice in all written communications to trust beneficiaries, essentially telling them that based on evidence unearthed in the case, information from the Interior Department about the trust may be unreliable. On appeal, the government both sought reversal of that order and asked the appellate court to remove Lamberth from the case. The D.C. Circuit granted both requests. Although the court’s reversal of Lamberth’s decision is defensible, its removal order is not. Stripped to its essence, the D.C. Circuit’s opinion gives two reasons for removal, neither of which withstands close scrutiny. First, the court claims that Lamberth’s July 2005 decision “all but accuses current Interior officials of racism.” But Lamberth’s opinion does not condemn any particular current official of the Interior Department in that way. Instead, it makes more general observations about the department’s attitude, past and present, toward American Indians � observations that are undeniably harsh (such as his use of the phrase “morally and culturally oblivious”) but do not, contrary to the appellate court’s suggestion, label current officials as racist. Even if the D.C. Circuit’s reading is accurate, there is something simply Orwellian about grounding the removal of a judge in part on the language of his opinion. Ordinarily, as the D.C. Circuit acknowledges, judges are removed on the basis of something they do, such as engaging in impermissible ex parte contacts. But here, Lamberth is being removed on the basis of what he said (or, more accurately, did not say) in a judicial opinion. This is remarkable. The reality is that judges regularly fill their opinions with strong words, especially in the face of a recalcitrant litigant. The D.C. Circuit itself grants that “condemnation [of the Interior Department] in the strongest terms” is appropriate in this case. As with any speech that might be offensive, the proper remedy is to permit counterspeech, not to muffle the speaker. The second reason the D.C. Circuit gives for removing Lamberth is “a string of reversed district court orders.” Since its opinion affirming his original findings and judgment, the D.C. Circuit has on eight occasions set aside his post-trial orders. Among other things, those orders held Interior officials in contempt, appointed a special master to oversee the case, required disconnection of portions of the department’s computer system from the Internet, and required the department to formulate costly plans to fulfill its fiduciary obligations. Although this reversal rate is troubling, the court’s opinion fails to tell the full story. It was the D.C. Circuit itself that set the stage for these orders. In its 2001 opinion affirming Lamberth’s judgment, the D.C. Circuit stressed that absent congressional restriction, federal courts possess the full range of legal and equitable powers “necessary to cure the [government's] legal transgressions” and analogized the case to the school-desegregation decisions. While conceding that judicial oversight of the Interior Department, like judicial oversight of segregated school districts, might seem intrusive, the court justified the intrusion on the basis of “the magnitude of government malfeasance and potential prejudice” to the Indian tribes. With this broad license from the D.C. Circuit, one can understand why Lamberth rode herd on the Interior Department. Even if Lamberth’s orders went too far, erroneous orders do not support a judge’s removal. Higher courts routinely reverse inferior court decisions. The remedy for an erroneous order is simple � vacate it. And if the lower court is repeatedly entering orders that the reviewing court finds erroneous, the proper remedy is for the appellate court to provide more detailed instructions in its remand order. Not only is Lamberth’s removal a disproportionate remedy, it is woefully inefficient. As noted, he has spent nearly 10 years on this case. He knows the parties and the issues better than anyone else. His institutional knowledge of the dispute is something the D.C. Circuit should value, not scorn. Reassigning the case to another judge squanders that knowledge. It saddles another overworked district judge with the responsibility to learn a long and convoluted record afresh. And it wastes judicial resources at a time when our federal trial judges, who already carry a heavy caseload, can ill afford the added burdens. Even more important than its intemperance or its inefficiency, the D.C. Circuit’s decision to remove a judge on the basis of his opinions threatens to harm judicial independence. The case of Cobell v. Kempthorne perfectly illustrates the value of the independence of Article III judges. A federal judge, an arm of the government and himself a Republican appointee, has punished the executive branch, also an arm of the government and currently run by the same political party that appointed the judge, for its handling of assets belonging to a small group of people that the government had defeated in armed conflict. In how many other nations would such healthy self-scrutiny even be possible? In a less independent system, a judge could hardly be expected to withstand the political pressures that might incline him to defer to the sovereign and his appointing party. The independence at the core of Article III enabled Lamberth to stand firm and insist that an incredible injustice be remedied. Removing him only encourages the executive branch to shop for a judge who it believes will be more inclined to support its view (notably, this is not the Interior Department’s first attempt to secure Lamberth’s removal). If it encounters another less-than-sympathetic judge, the department may dig in its heels even deeper, hoping to develop a new record of reversals and enough provocative morsels in that judge’s opinions to seek his removal under the logic of the D.C. Circuit’s opinion. Moreover, the implications of the D.C. Circuit’s decision extend far beyond this case, where the equities are relatively one-sided. Though no one doubts that the Interior Department engaged in a serious injustice, imagine a true clash of legal principles, such as an abortion dispute or the Terri Schiavo case. The D.C. Circuit’s opinion gives passionate litigants an entirely new battleground � not simply whether a judge is correct on the law, but whether the judge’s language is too critical of them. Judicial opinions will be pored over for bad word choice. Judges in long-running disputes will need to develop a superhuman ability not to remember or reflect on litigants’ past behavior in that very case. Under the logic of the D.C. Circuit’s opinion, litigants should not wait for a final decision in the case. If a judge has criticized a party elsewhere or has been hit with multiple reversals in favor of the party, the D.C. Circuit’s opinion suggests, that party should immediately seek the judge’s removal. I certainly do not wish to suggest that the D.C. Circuit faced an easy call or to blame the government lawyers for their litigation strategy. The panel that unanimously ordered Lamberth’s removal consisted of three respected judges from across the jurisprudential spectrum. The executive branch, as a party in the matter, had every right to vindicate its interests through the available procedural mechanisms, including seeking removal of a judge. Friends have told me that senior people at the Interior Department feel personally besieged by Lamberth’s orders about a problem they inherited but did not create. Yet despite the reasonable intentions of these actors, the decision has dealt an unfortunate blow to the independent judiciary so essential to our freedom. No one doubts that the Interior Department has mismanaged the American Indians’ trust assets � the D.C. Circuit described “a serious injustice that has persisted for over a century” � or that Judge Lamberth has helped to expose the very injustice that the D.C. Circuit laments. Removing him this way sends an unfortunate message to other federal judges that the next time they uncover a “serious injustice” perpetrated by the people’s government, they should beware what they do and what they say. Peter B. Rutledge is an associate professor at Catholic University of America’s Columbus School of Law, where his teaching and research interests include international dispute resolution and criminal law. This article originally appeared in Legal Times, a Recorder affiliate.

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