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Related: Bashman Archive

Call me an old-fashioned fussbudget if you must, but I long for the time when recused appellate judges kept secret how they would have voted on the outcome of a given appeal had they not been recused. Last week, the very same federal appellate court that once caused me to opine here on the subject of “Dead Judges Voting” issued a ruling that now causes me to consider the propriety of recused judges opining on the outcome of appeals from which they are recused from ruling. Because federal appellate courts typically decide appeals by means of panels consisting of at least three judges, it is a footnote-worthy occurrence when a two-judge federal appellate panel issues a decision. This most often happens when the third judge becomes unable to participate in the ruling before the opinion issues, either due to death, disability, retirement or promotion to the U.S. Supreme Court. On rare occasion, however, one of the three judges will recognize the need to recuse after an appeal has been argued and submitted for decision. Despite undertaking every precaution to identify these recusal situations before the appeal is submitted, so that another judge can substitute for the recusing judge and maintain a three-judge panel, there will always be instances when either the need to recuse or even the basis for recusal arises after submission but before a decision is filed. Fortunately, if the remaining two judges agree on the outcome of the appeal, they can issue a binding decision, because they constitute a quorum of the original three-judge panel. Last week, just this sort of two-judge panel of the 3rd U.S. Circuit Court of Appeals issued a ruling in which the opinion’s very first footnote explained: “The Honorable Maryanne Trump Barry participated in the oral argument and panel conference and joined in the decision on this case, but discovered facts causing her to recuse from this matter prior to filing of the Opinion. The remaining judges are unanimous in this decision, and this Opinion and Judgment are therefore being filed by a quorum of the panel.”

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