(Photo by Berthold Werner / Wikimedia Commons)
A federal judge in Detroit with ties to Jewish organizations has angrily rejected an unusual motion urging him to recuse in an immigration case brought by a Palestinian-American woman.
Invoking the name of judges ranging from Louis Brandeis to Leon Higginbotham and Michael Mukasey, U.S. District Judge Paul Borman said the motion “strikes at the very heart of a federal judge’s pledge to administer impartial justice, and does so with careless and rank speculation.”
According to local press reports, supporters of plaintiff Rasmieh Odeh crowded Borman’s courtroom as he announced his order rejecting the recusal motion. It was coincidental that the recusal dispute came to a head as Israeli and Palestinian forces are locked in combat.
Judicial ethics experts generally agreed that the recusal motion was off the mark. “A judge who contributes generally to causes aimed at improving the lives of Jews and Israelis does not strike me as casting doubt on his fitness” to hear the Odeh case, said Charles Geyh, a professor at Indiana University Maurer School of Law–Bloomington, “any more than a Catholic judge’s contributions to Catholic charities would cast doubt on his fitness to hear an altar boy’s claim that he was abused by a parish priest.”
Amanda Frost of American University Washington College of Law criticized Borman for showing his resentment in his order. “The judge was obviously personally offended, and responded with angry attacks on the lawyers,” Frost said. “That is unfortunate, and is another reason why the recusal decision should be made by another judge whenever possible.” Recusal motions are uncommon, in part because litigants fear angering the judge.
Lawyer Michael Deutsch of the People’s Law Office in Chicago filed the motion July 14 on behalf of Odeh, a Palestinian-American woman accused of immigration fraud. The U.S. government asserts that when she applied for citizenship in 2005, Odeh concealed the fact she had been imprisoned in Israel for 10 years for her role in terrorist bombings in Israel.
In her defense, Odeh claims Israeli troops tortured her, and she wants her arrest and imprisonment excluded from evidence at trial.
Deutsch’s motion, which referred to Borman as “this court,” asserted that “Given this court’s deep personal and active commitment to the support and defense of the state of Israel, and the issues raised by Ms. Odeh’s limine motion … it cannot be disputed that this court’s ‘impartiality might be reasonable questioned.’ ” Deutsch invoked 28 U.S.C. 455(a), the statute defining when federal judges must recuse or disqualify themselves.
Through the judge’s repeated trips to Israel, Deutsch also alleged, Borman likely acquired “personal knowledge of disputed evidentiary facts” from Israeli officials about complaints of torture by the military.
Borman’s written order calls Deutsch’s allegation of inside knowledge “startling,” a “baseless assertion” and “irresponsible speculation.” Borman added that some of Deutsch’s allegations mixed him up with his cousin, also named Paul, while others pertained to activities before he was appointed to the bench in 1994.
“Like every one of my colleagues on the bench, I have a history and a heritage, but neither interferes with my ability to administer impartial justice,” Borman wrote. He said his fundraising efforts have all been directed toward helping the Jewish community and its relations with other groups, as well as “to fund social service efforts in the diaspora and the State of Israel.”
In 1994, then-Judge Michael Mukasey rejected claims that his Jewish religious ties made it impossible to be fair in a trial stemming from the 1993 World Trade Center bombings. Borman cited Mukasey’s statement that adopting such a standard would “disqualify not only an obscure district judge such as the author of this opinion, but also Justices Brandeis and Frankfurter … each having been both a Jew and a Zionist.”
Borman also noted that the late Higginbotham, a black judge in Philadelphia, rejected assertions that he should recuse in cases involving black defendants. Elaborating on that point in 1974, Higginbotham praised Jewish judges for remaining active in the Jewish community. “I would think less of them if they felt that they had to repudiate their heritage in order to be impartial judges,” Higginbotham said.
Deutsch did not return calls for comment on Monday, but in an interview before Borman issued his order, Deutsch denied that Borman’s religion was the issue. Deutsch stressed that it was Borman’s long record of financial and other support for Israel that cast doubt on his impartiality in a case that casts Israel in an unfavorable light.