The 5th U.S. Circuit Court of Appeals declined to recuse U.S. District Judge Lynn Hughes from a case after a plaintiff in a civil rights case alleged Hughes made “biased and bigoted statements” during a pre-trial conference. Several days before, Hughes had issued an opinion explaining his remarks.

On Sept. 19, the 5th Circuit issued a one-page order denying the petition for writ of mandamus in In Re Jitendra Shah, which called for Hughes’ recusal. The 5th Circuit’s decision comes after the defendants in Shah filed a motion arguing the issue is moot, attaching a Sept. 16 opinion from Hughes denying the recusal motion, in which Hughes explained that his comments were neither biased nor bigoted.

The background to the dispute, according to the Aug. 29 petition for writ of mandamus filed with the 5th Circuit in In Re Jitendra Shah, is as follows. [See " Plaintiff Asks for Recusal of Judge Lynn Hughes for 'Biased and Bigoted Statements'" Texas Lawyer, Sept 3, 2013, page 1.]

Jitendra Shah is a native of India and a citizen of the United States. He sued his employer under the Civil Right Act of 1964, alleging that the employer discriminated against him because of his race and national origin. He also alleged retaliation for protesting the discrimination. The case was assigned to Hughes.

During a Nov. 26, 2012, pre-trial conference, which allegedly was held ex parte because Shah’s lawyer was ill, Shah alleges in the mandamus petition that Hughes commented about a university’s diversity director position: “And what does the diversity director do? Go around painting students different colors so that they would think they were mixed?”

Hughes also allegedly stated that Indians are “Caucasian.”

Further, according to the mandamus petition, Hughes allegedly said, “That’s why Hitler used the swastika” — “it was a symbol of good luck” and “going back in Sanskrit to the Aryan people which he claimed a bunch of Germans were. They act a lot like Germans.”

Hughes also stated, “Eleanor Roosevelt said staffs of one color always work better,” the mandamus petition continues.

The mandamus petition alleged that Hughes’ statements in the Nov. 26, 2012, conference reflect actual bias and/or prejudice against Shah or, at a minimum, would cause a reasonable person to harbor doubts about his impartiality.

“Judge Hughes’ biased and bigoted remarks against people of color, such as Jitendra Shah, have no place in a federal courtroom, least of all coming from a federal judge who has sworn an oath to uphold the Constitution,” said Scott Newar, a Houston solo who represents Shah, after filing the writ.

Hughes’ Explanation

The defendant employer in the case, the Texas Department of Criminal Justice (TDCJ), opposed the mandamus writ petition that sought recusal. TDCJ argued that the mandamus petition was mooted by Hughes’ Sept. 16 opinion, in which Hughes denied the recusal motion and explained his comments. Some of those explanations, according to Hughes’ opinion, which the TDCJ attached to its Sept. 16 advisory to the 5th Circuit, included:

• His comments about college diversity programs do not demonstrate an inability to follow jurisprudence on affirmative action: “This case is not about affirmative action. A passing comment about bureaucratic make-work waste rather than seeking the best students says nothing about preferences under the law . . . The court has routinely applied laws that it thought were wise equally with those that it thought were unwise. A judge is not required to believe the tax code, say, consistently makes sense both to pay and apply those taxes.”

• He was not confused about the meaning of the word “Caucasian.” “The categories of people evolve and flip. How the Bureau of the Census or the Equal Employment Opportunity Commission categorize people changes frequently. . . A frank discussion of race is required in a case brought by a man claiming discrimination based on his race. Caucasian is the old-fashioned crude allocation of seven billion people into three groupings. Groups that broad may have minor genetic unity, but knowing that is inadequate for public decision-making. If he lost his job because of his origin, religion, or race, the law protects him.”

• His discussion of the swastika and “uncritical” reference to Hitler is not insensitive to victims of racial, ethnic and religious discrimination. “The reference to Hitler’s adoption of the swastika was not ‘gratuitous’ or ‘neutral.’ It was a discussion — or monologue — about how a Sanskrit word for good luck became the symbol of a North-European political movement. . . . The comment was not uncritical, it was historical. Would an uncritical reference to Hitler make one a Nazi sympathizer? When the court said that ‘they act a lot like Germans,’ that was a criticism of the current German thought — Hegel is an example — that has called for a return to the glory of the race when they were dominant.”

• His mention of Eleanor Roosevelt’s preference for staff of one race illustrates that what a person does and what a person says are not always the same. “The court does not believe that a staff of one color works better together; the court has no experience with domestic staffs of more than one. The court was not approving of her racial hiring. It was criticism.”

Newar says that Shah plans to file a petition for panel rehearing and petition for rehearing en banc in the case at the 5th Circuit.

Allan K. Cook, an assistant Texas attorney general who is defending TDCJ in the case, did not return a call for comment.