[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]





                    EXAMINING THE STATE OF JUDICIAL 
                 RECUSALS AFTER CAPERTON v. A.T. MASSEY

=======================================================================

                                HEARING

                               BEFORE THE

                       SUBCOMMITTEE ON COURTS AND
                           COMPETITION POLICY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                           DECEMBER 10, 2009

                               __________

                           Serial No. 111-118

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov



                  U.S. GOVERNMENT PRINTING OFFICE
53-947 PDF                WASHINGTON : 2010
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001






                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida               STEVE KING, Iowa
STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
  Georgia                            JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
JUDY CHU, California                 TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois          GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

             Subcommittee on Courts and Competition Policy

           HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chairman

JOHN CONYERS, Jr., Michigan          HOWARD COBLE, North Carolina
RICK BOUCHER, Virginia               JASON CHAFFETZ, Utah
ROBERT WEXLER, Florida               BOB GOODLATTE, Virginia
CHARLES A. GONZALEZ, Texas           F. JAMES SENSENBRENNER, Jr., 
SHEILA JACKSON LEE, Texas            Wisconsin
MELVIN L. WATT, North Carolina       DARRELL ISSA, California
MIKE QUIGLEY, Illinois               GREGG HARPER, Mississippi
DANIEL MAFFEI, New York

                    Christal Sheppard, Chief Counsel

                    Blaine Merritt, Minority Counsel








                            C O N T E N T S

                              ----------                              

                           DECEMBER 10, 2009

                                                                   Page

                           OPENING STATEMENTS

The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in 
  Congress from the State of Georgia, and Chairman, Subcommittee 
  on Courts and Competition Policy...............................     1
The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Ranking Member, Subcommittee on 
  Courts and Competition Policy..................................     2
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary, and Member, Subcommittee on Courts and Competition 
  Policy.........................................................     4

                               WITNESSES

The Honorable M. Margaret McKeown, Judge, United States Court of 
  Appeals, Ninth Circuit District, San Diego, CA
  Oral Testimony.................................................     6
  Prepared Statement.............................................     8
Mr. Charles G. Geyh, Associate Dean of Research, John F. 
  Kimberling Professor of Law, Indiana University, Maurer School 
  of Law, Bloomington, IN
  Oral Testimony.................................................    21
  Prepared Statement.............................................    23
Mr. Richard E. Flamm, Author of ``Judicial Disqualification: 
  Recusal and Disqualification of Judges;'' Conflicts of Interest 
  and Law Firm Disqualification, Berkeley, CA
  Oral Testimony.................................................    38
  Prepared Statement.............................................    40
Mr. Eugene Volokh, Gary T. Schwartz Professor of Law, University 
  of California, Los Angeles, CA
  Oral Testimony.................................................    50
  Prepared Statement.............................................    53
Mr. Norman L. Reimer, Executive Director, National Association of 
  Criminal Defense Lawyers, Washington, DC
  Oral Testimony.................................................    57
  Prepared Statement.............................................    60
Mr. Arthur D. Hellman, Professor of Law, University of 
  Pittsburgh, Sally Ann Semenko Endowed Chair, Pittsburgh, PA
  Oral Testimony.................................................    66
  Prepared Statement.............................................    68

                                APPENDIX

Material Submitted for the Hearing Record........................   111

 
 EXAMINING THE STATE OF JUDICIAL RECUSALS AFTER CAPERTON v. A.T. MASSEY

                              ----------                              


                      THURSDAY, DECEMBER 10, 2009

              House of Representatives,    
                 Subcommittee on Courts and
                                 Competition Policy
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 1:05 p.m., in 
room 2237, Rayburn House Office Building, the Honorable Henry 
C. ``Hank'' Johnson, Jr. (Chairman of the Subcommittee) 
presiding.
    Present: Representatives Johnson, Conyers, Quigley, Jackson 
Lee, Coble, and Chaffetz.
    Staff Present: (Majority) Christal Sheppard, Subcommittee 
Chief Counsel; Elisabeth Stein, Counsel; Rosalind Jackson, 
Professional Staff Member; and (Minority) Blaine Merritt, 
Counsel.
    Mr. Johnson. We are officially starting this Subcommittee 
hearing.
    Without objection, the Chair will be authorized to declare 
a recess of the hearing, and I will now recognize myself for a 
short statement.
    I would like to welcome everyone to the hearing today and 
offer my thanks to the panel members for being here with us.
    I am holding this hearing because the issue of judicial 
recusal is extremely important to me. As a former magistrate 
judge and as Chair of this Subcommittee, I firmly believe that 
we must maintain the integrity of our judiciary. Judicial 
misconduct, particularly in the form of a judge to recuse him 
or herself when there is a conflict of interest, must be taken 
seriously. Our Federal judges go through an extensive process 
in the Senate to make sure that they are fit to hold a lifetime 
judicial appointment, and I believe that most judges genuinely 
do their best to be fair and impartial in every case and 
appropriately recuse themselves when there exists an actual 
bias or the appearance of bias. As such, Congress should take 
care not to impose unnecessary or overly burdensome procedural 
or substantive burdens on our already overworked judicial 
system.
    However, the limited instances where judges do not recuse 
themselves when there is an appearance of bias creates a 
tension between the need for an independent judiciary and the 
need for some Federal oversight to ensure that cases are 
decided fairly.
    There have been three recent cases which highlight the 
problem with judicial recusal. The first is the Siegelman case. 
Siegelman's codefendant, Scrushy, claimed that he was entitled 
to a new trial because the district court judge should have 
disclosed his extrajudicial income from business contacts with 
the United States Government. The court denied Scrushy's 
motion. The 11th circuit on appeal held that Scrushy's claim 
held no merit. However, the court did not explain why the 
motion was denied.
    This was a highly political case and it raises one of the 
concerns that I hope our witnesses will address today, and that 
is: Should the court be required to specifically explain why a 
motion for recusal was denied?
    In another case, Georgia State senator Charles Walker, a 
highly respected former newspaper publisher and entrepreneur, 
as well as the first African American chosen as Senate majority 
leader in Georgia, was charged with mail fraud, tax fraud and 
conspiracy regarding his prior publishing business. The 
indictment filed against Mr. Walker may have been based on 
politics instead of actual wrongdoing. Mr. Walker was also 
assigned a judge who had close ties to the principal competitor 
of Mr. Walker's newspaper business. Mr. Walker did not submit a 
request that the judge recuse himself. However, after his trial 
he maintained that his defense counsel should have moved to 
disqualify.
    The final recusal issue I want to talk about today is Judge 
G. Thomas Porteous, a district court judge who is currently 
under consideration by the Impeachment Task Force of the House 
Judiciary Committee on which I sit.
    Judge Porteous failed to recuse himself from cases where he 
had financial relationships with several attorneys who appeared 
before him. Now, the issue of whether Judge Porteous behaved 
improperly is still something the Task Force is considering. 
However, if the task force finds that Judge Porteous should 
have recused himself in those cases, it certainly highlights 
the legitimate concerns held by many that judges might not be 
the best people to determine whether they should recuse 
themselves from a case.
    So what should Congress do? Clearly a balance must be 
maintained between the need for transparency in judicial 
recusals, and the need for a judge's private life to be 
protected. However, the failure of a judge to recuse himself or 
herself when the outcome leads to a miscarriage of justice, is 
one that must be taken very seriously. There have been some 
suggested procedural reforms for judicial recusal laws. One 
would be to allow appeals. Another would require judges to 
explain their disqualification decision. And yet another would 
be to allow disqualification motions to be decided by other 
judges.
    Some States have already acted to amend their judicial 
recusal laws to allow for more transparency. However, the 
Federal recusal laws continue to lag behind. I look forward to 
the testimony from today's witnesses that will address whether 
reform to judicial recusal laws is ripe for review; and if it 
is, what steps Congress can and should take to enact 
substantive and procedural reforms to judicial recusal laws.
    I now recognize my colleague, Mr. Coble, the Ranking Member 
of this Subcommittee, for his opening remarks.
    Mr. Coble. Thank you, Mr. Chairman. I appreciate you having 
called this hearing. It appears we have a formidable panel from 
whom we will hear subsequently.
    There has always been inherent tension among the three 
branches of our Federal Government. The founders intended that 
no one branch would dominate the other two and that each branch 
would guard its own constitutional territory from the other 
two. This system of checks and balances has done a wonderful 
job of defending civil liberties, promoting national security, 
and expressing the popular will through a deliberative 
legislative process.
    The inevitable by-product of this construct is 
institutional tension, especially when one branch ``checks'' 
the other. But it is natural. And, in fact, it is a sign of 
civic health.
    This hearing wasn't convened to create more tension than 
already exists. We are not here to poke a coequal branch of 
government in the eye. All Members of the Courts Subcommittee 
respect the work of the judiciary, even if we don't always 
agree with their work product in every instance. Following the 
founder's example, we appreciate the importance of judicial 
independence. Article 3 judges should be insulated from 
political pressure to render unbiased opinions, and that is why 
they enjoy life tenure. However, this doesn't mean that Federal 
judges are entitled to a free pass in life.
    We have a constitutional obligation to conduct oversight on 
judicial operations, just as the judiciary is charged with 
reviewing our statutory handiwork for legal defects. But short 
of impeachment, a congressional prerogative rarely exercised, 
there is little we can do to discipline judges for ethical 
lapses. Still, we need to work with the judiciary to identify 
areas of concern, if they exist, and to develop corrective 
responses when appropriate. As a former court Subcommittee 
Chairman and a long-time Member of this House Judiciary 
Committee, I have participated in previous oversight efforts to 
review the state of judicial ethics and behavior. Much of this 
work culminated in a rewriting of the Judicial Conduct and 
Disability Act of 1980, the statutory mechanism by which 
individuals may file complaints against Federal judges.
    While I am sometimes plagued by senior moments, Mr. 
Chairman, I do recall that this matter peripherally touched on 
the matter of recusals, with some arguing that recusal statutes 
were dead law. In other words, judges weren't likely to recuse 
themselves from cases, and lawyers were too frightened or 
uneasy to ask them to do so.
    And if memory further serves, part of this Subcommittee's 
impeachment investigation of District Judge Manny Real during 
the 109th Congress involved a recusal issue.
    No open-minded litigant, in my opinion, believes that he or 
she is entitled to win in Federal Court; but, every litigant 
expects and deserves to be treated fairly. At minimum, this 
means the presiding judge must be free of bias or prejudice 
toward any litigant. If this isn't the case, the judge, I 
believe, should step aside.
    We have a balanced panel of witnesses who can speak to this 
issue in great detail, and we are eager to hear from them.
    I emphasize that I am not out to get the judiciary. I don't 
know if the complaints about the state of recusal jurisprudence 
are anecdotal or genuine. That is why we are having this 
hearing, and I look forward to participating.
    Mr. Chairman, at this time I would like to make a unanimous 
consent request that we enter into the record a statement and 
other information submitted by Michigan Supreme Court Justice 
Robert Young about his State's experience with their recusal 
laws.
    Mr. Johnson. Without objection.
    Mr. Coble. I yield back the balance of my time.
    Mr. Johnson. I thank Ranking Member Coble.
    Next I will recognize Mr. John Conyers, a distinguished 
Member of this Subcommittee and also the Chairman of the full 
Judiciary Committee.
    Mr. Conyers. Thank you, Chairman Johnson.
    Welcome judges, panelists. This is almost like a bright 
line. There are two schools of legal thought here; brilliance 
all over the place, but still a bright line. I don't want to 
reduce this to simplistic terms, old school versus new school 
or retrograde versus progress. But goodness, gracious, here is 
a problem begging for consideration. We have distinguished 
members of the court and teachers of law saying nothing wrong; 
accidents will happen. You don't have to be so perfect about 
all this.
    A judge in Alabama, not a citizen in Alabama, a judge in 
Alabama, that goes up to the 11th circuit and for no reason, 
denies the disqualification order.
    Why?
    We don't choose to give you any reasons why. You don't need 
to know why. Well, it may be some of your business, but it is 
none of your concern.
    This is the Governor.
    And, so in instance after instance--this is what has 
brought me to love and revere the Committee on the Judiciary. 
In the Congress--we get this opportunity that very few others 
do. Yes, inside of the bar associations there will be brilliant 
discussion back and forth about it; but here in this country, 
the democratic society that is held up, the constitutional 
democracy that is written and spoken about and emulated and 
practiced and sought after, locks up more people than any other 
place in the world.
    What causes that? Well, don't get over-excited about that, 
Chairman, it is just the way that the cookie crumbles. You 
uphold law and order.
    What about transparency?
    We, Federal jurists, don't have to tell you why we have 
ruled thus and so. Do you know how much clogging of the courts 
and how much backing up if judges had to explain everything 
they did? Go read the precedents. Go back and take a refresher 
course, but don't bother us with having to explain why a 
Governor of one of the several States can be denied relief 
without any explanation whatsoever.
    That offends me. And it is only a small part of the problem 
that brings us here today. There are so many areas that we need 
to reexamine, not to help somebody or put your thumb on the 
scale, but just to bring this thing of simple justice home.
    Do you know how many--and I conclude on this--do you know 
how many people in this country feel that they got really taken 
going through a court process? That the thing was against them 
from the beginning? I know enough to feel disturbed about this 
question of recusal that Chairman Johnson has put on the table 
this afternoon. I thank him for his efforts.
    Mr. Johnson. You are quite welcome, Mr. Chairman. Thank you 
for your statement.
    Without objection, other Members' opening statements will 
be included in the record.
    Now I am pleased to introduce the witnesses for today's 
hearing.
    Our first witness is the Honorable M. Margaret McKeown from 
the United States Court of Appeals for the ninth circuit where 
she has served since 1998. Judge McKeown has published and 
spoken extensively on the topic of judicial ethics. She is also 
the chair of the Judicial Conference of the United States Code 
of Conduct Committee, and we welcome her to this hearing.
    Our second witness is Charles Geyh who is the Associate 
Dean of Research, John F. Kimberling Professor of Law, Indiana 
University, Maurer School of Law. Professor Geyh also serves as 
a director and consultant of the American Bar Association 
Judicial Disqualification Project. He is widely known for his 
scholarship in addressing the Federal courts and judicial 
recusal laws. Welcome, sir.
    Our third witness is Richard Flamm. Mr. Flamm is an 
attorney specializing in judicial ethics and judicial recusal. 
He is an expert in that area. He wrote the leading treatise in 
this area called ``Judicial Disqualification: Recusal and 
Disqualification of Judges.'' Welcome, Mr. Flamm.
    Our fourth witness is Eugene Volokh. Professor Volokh 
teaches constitutional law, criminal law, and tort law at the 
UCLA School of Law. Before going to UCLA, he clerked for 
Justice Sandra Day O'Conner on the U.S. Supreme Court and for 
Alex Kozinski for the U.S. Court of Appeals for the 9th 
Circuit. Professor Volokh was one of the attorneys for A.T. 
Massey Coal Company in Caperton v. A.T. Massey Coal Company. We 
welcome him here today.
    Our fifth witness is Norman L. Reimer. Mr. Reimer is the 
executive director of the National Association of Criminal 
Defense Lawyers, which is an organization dedicated to ensuring 
justice and due process for all. Prior to serving in that 
position, Mr. Reimer practiced law for 28 years, most recently 
at Gould, Reimer, Walsh, Goffin, Cohn, LLP. Mr. Reimer is 
active in judicial recusal issues and assisted in writing the 
amicus brief in Caperton v. Massey. Welcome, Mr. Reimer.
    Last is our sixth witness, Mr. Arthur D. Hellman, who is a 
professor of law at the University of Pittsburgh School of Law. 
Mr. Hellman is a dedicated scholar in the field of judicial 
ethics and has written several articles on the point. He has 
testified before both the House and the Senate Judiciary 
Committees on Federal court issues, and assisted with the 
Judicial Improvements Act of 2002. Welcome, Professor.
    Thank you all for your willingness to come and participate 
in today's hearing. Without objection, your written statements 
will be placed into the record. We ask that you limit your oral 
remarks to 5 minutes. You will note that we have a lighting 
system that starts with a green light, and after 4 minutes it 
turns yellow, and then red at 5 minutes. After each witness has 
presented his or her testimony, the Subcommittee Members will 
be permitted to ask questions subject to the 5-minute limit.
    Mr. Johnson. Judge McKeown, will you now proceed with your 
testimony.

 TESTIMONY OF THE HONORABLE M. MARGARET McKEOWN, JUDGE, UNITED 
 STATES COURT OF APPEALS, NINTH CIRCUIT DISTRICT, SAN DIEGO, CA

    Judge McKeown. Thank you, Chairman Johnson, Mr. Coble and 
Members of the Committee. I appreciate being invited to testify 
here today. I am the chair of the Judicial Conference Committee 
on Codes of Conduct, which is the Federal judges ethics 
committee and I appear here on behalf of the Judicial 
Conference. There are three points I would like to touch on in 
my testimony this afternoon: first, the recusal standards 
applicable to Federal judges; second, the extensive framework 
by which the judiciary endeavors to abide by these standards; 
and, finally, the role that our committee plays in advising and 
educating judges.
    Ethics is a critical part of the fabric of the Federal 
judiciary, and impartiality lies at the heart of our work.
    Judicial recusal is formally governed by two key statutes, 
28 USC section 144 and section 455(a). In addition, Federal 
judges abide by the Ethics in Government Act, gift regulations, 
and other statutes, and the Judicial Conference imposes further 
constraints through the judicial Code of Conduct. The language 
in your Federal statute 455 is also mirrored in our Code of 
Conduct.
    There are five specific situations in which recusal is 
mandatory and may not be waived. Those are detailed in my 
written testimony.
    Let me just add one key note here concerning disqualifying 
financial interests. In the Federal system, unlike in some 
State systems, there is no de minimis exception for recusal 
based on a financial interest. Even owning a single share of 
stock in a party mandates recusal, and Federal judges are not 
permitted to put their assets into a blind trust.
    In addition to the mandatory recusal situations, there is 
one important other mandatory recusal, and that is whenever a 
judge's impartiality might reasonably be questioned.
    These statutes and the Code are actually part of a much 
broader framework that the judiciary has developed both to 
promote transparency and to provide multiple checkpoints in the 
recusal process. Several institutional safeguards operate 
together to ensure that judges have the tools they need to 
follow the recusal statutes and that judges who have real 
conflicts not hear those cases.
    They begin with a system that randomly assigns cases to 
judges within a particular court. And at the outset and 
throughout the entire proceeding, the judge has an obligation 
to assess whether disqualification is required. Guarding 
against conflict of interest is of paramount importance to us.
    Besides random assignment, the Judicial Conference requires 
all judges to use an electronic conflict screening system. This 
ensures that judges do not inadvertently fail to recuse based 
on financial interest in a party. In addition, all judges file 
detailed annual disclosure reports, which I know Members of 
Congress are also familiar with in their roles, and we also 
disclose our attendance at publicly funded educational 
seminars, and these reports are publicly available.
    The safeguards are intended to minimize conflicts before 
they occur and to avoid the possible need for recusal motions. 
Beyond these systemic safeguards, there is, of course, the 
litigation process which permits any party to file a recusal 
motion, and appellate review provides a further avenue of 
recourse.
    Finally, the Judicial Conduct and Disability Act, which I 
believe was referenced here by Congressman Coble, and the 
procedures under that act may be available to provide a check 
on flagrant violations of the recusal law. The Judicial 
Conference, through the Breyer Commission, has recently 
strengthened the procedures under that act for addressing 
complaints against judges.
    Finally, let me turn to the role of our committee. 
Basically we are an advisory body, an ethics service center, 
and a sounding board to help judges try to comply with this 
wide array of ethical principles. We are actually often called 
the ``Dear Abby Committee,'' and we give confidential advice to 
judges. Our goal is to make sure that ethics guidelines for 
judges protect the fairness and impartiality of the judiciary 
while striking the right balance with judicial independence. We 
have more than 80 publicly available advisory opinions, many of 
them on the points of recusal, and our recusal advice goes well 
beyond the Code and the statute.
    Also, a judge who needs ethics advice, in addition to doing 
his or her own research, can come to the committee for informal 
advice; and if informal advice doesn't suffice, we provide 
written opinions, confidential letters of advice. We respond to 
more than a thousand informal inquiries every year. We issue 
over a hundred formal opinions, and much more informal advice 
is offered through our education program.
    A key function of our committee is education for judges, 
law clerks and staff, and in the last few years we have greatly 
increased that education outreach. We offer a number of printed 
publications for the judges, Internet Training, and also in-
person training.
    In conclusion, both the judges and the public have a broad 
array of tools and a transparent environment to ensure the fair 
and impartial adjudication of cases, while maintaining the 
independence of the judiciary needed to uphold our laws. We 
regard ethics as a very serious matter.
    I appreciate appearing here today. I welcome your 
questions.
    Mr. Johnson. Thank you, Judge McKeown.
    [The prepared statement of Judge McKeown follows:]
        Prepared Statement of the Honorable M. Margareet McKeown





                               __________
    Mr. Johnson. Professor Geyh.

TESTIMONY OF CHARLES G. GEYH, ASSOCIATE DEAN OF RESEARCH, JOHN 
  F. KIMBERLING PROFESSOR OF LAW, INDIANA UNIVERSITY, MAURER 
                 SCHOOL OF LAW, BLOOMINGTON, IN

    Mr. Geyh. Thank you, Mr. Chairman, for the opportunity to 
be here today. It is not just a privilege but a pleasure to 
appear before the Committee. I served as counsel many years ago 
under Robert Kastenmeier. And as former counsel, I would be 
remiss not to thank Kirsten Zewers for helping out and 
organizing me for this event.
    I am testifying on my own behalf here and not on behalf of 
the American Bar Association and other organizations with whom 
I have worked on this matter.
    The Supreme Court's decision in Caperton, which really is 
part of the title of this hearing, does not apply to the 
Federal courts directly. It was a case that concerned a State 
judge, and it was decided under circumstances unique to States 
that elect their judges. The thing about Caperton, though, is 
it does underscore the importance of impartial justice and the 
role disqualification plays in preserving it, and in that sense 
is a good launching point for this hearing.
    My starting point is to say, on the whole, I do think that 
we have an excellent Federal judiciary, and that it is 
committed to promoting impartial justice. And I do think that 
on the whole, section 455, which has been 200 years in the 
making, has served the judiciary pretty well. That doesn't 
mean, though, that there aren't problems. And in my testimony I 
allude to several of them. A couple of them I will reserve for 
my written testimony, and focus on one here which has to do 
with the judicial disqualification procedure and the issue of 
judges deciding their own disqualification motions.
    Section 455, as Judge McKeown testified, indicates first 
that a judge must disqualify himself whenever his impartiality 
might reasonably be questioned, and then goes on to enumerate a 
series of rather specific instances when judicial 
disqualification is necessary.
    It is extremely rare in my review for a judge to willfully 
refuse to disqualify himself under circumstances in which the 
judge knows he must. On the whole, I think our judges are too 
committed to impartial justice for any but the isolated bad 
apple to do that; and you refer to Judge Porteous, and he may 
be among them. Ironically, however, I think it is precisely, or 
at least partly, because our judges are so committed to 
impartial justice that we have a problem.
    Let me explain. Judges take an oath to be impartial. Judges 
ascribe to a code of conduct in which they are directed to act 
at all times in a manner that promotes, that preserves 
impartial justice. They are asked also to follow a code that 
says you should avoid even the appearance of impropriety, which 
means even the appearance, frankly, of partiality.
    Now that being said, when a judge is called upon in the 
context of a disqualification proceeding to disqualify herself 
because she is biased, or because she is perceived to be 
biased, she is being asked to admit that she is not impartial, 
that she has created a perception problem that her oath and the 
code tell her she shouldn't be creating. In other words, she is 
being accused implicitly of performing in a way that is 
suboptimal.
    For that reason I think, understandably, judges who are 
deeply committed to impartial justice are predisposed to think 
that they can be impartial and they cannot reasonably be 
perceived otherwise. And it is not at all uncommon for lawyers 
in the field to say that the judges take umbrage when the judge 
stands accused of being less than impartial, precisely because 
I think judges try very hard to be.
    Now, when a judge is called upon in the circumstances, 
against this backdrop, it is troubling to me that the standard 
operating procedure in disqualification proceedings is for the 
judge whose disqualification is being challenged to be the 
judge who decides her own fitness to sit.
    First, it strikes me as unfair to the judge in question to 
ask her to second-guess her own impartiality and her own 
commitment to preserving the appearance of impartial justice.
    Second, it is unrealistic, it seems to me, to expect anyone 
to be able to candidly assess the extent of their own bias. 
Research in the psychology field underscores this, the 
complexity of that. It is also hard to expect someone to 
understand how they would reasonably be perceived by another, 
which is equally complicated.
    Third and finally, when a party is concerned that a judge 
appears to be too biased to be fair, which is really what is 
going on in disqualification proceedings, it is odd in the 
extreme to have that issue resolved by the very judge who is 
allegedly too biased to be fair. Having a judge grade their own 
paper in this way is bound to create a perception problem, 
which strikes me as being uniquely problematic for a judiciary 
which is committed to the appearance of impartial justice.
    To me, the solution is one that many States have adopted, 
which is to adopt what I would suggest to be a two-part process 
that could be embedded in a procedural section of section 455. 
Part one says; let the judge receive the motion initially and 
make an initial determination as to whether disqualification is 
in order. Oftentimes, that will come very quickly. The judge 
will be unaware that one of the many defendants is a party with 
respect to whom a relative is on the board of directors and 
will quickly step aside.
    If, however, the judge concludes that disqualification is 
unwarranted, then the simple solution, it seems to me, is to 
send the matter to another judge. And I would contend that many 
of the situations in which you second-guess this qualification 
determinations, could be resolved by returning the matter to a 
different judge that is not going to be subject to these 
suspicions.
    Thank you.
    Mr. Johnson. Thank you, Professor Geyh.
    [The prepared statement of Mr. Geyh follows:]
                 Prepared Statement of Charles G. Geyh






                               __________
    Mr. Johnson. Now we will hear from Mr. Flamm.

      TESTIMONY OF RICHARD E. FLAMM, AUTHOR OF ``JUDICIAL 
  DISQUALIFICATION: RECUSAL AND DISQUALIFICATION OF JUDGES;'' 
CONFLICTS OF INTEREST AND LAW FIRM DISQUALIFICATION, BERKELEY, 
                               CA

    Mr. Flamm. Thank you very much, Chairman Johnson.
    Chairman Johnson, Ranking Member Coble, other Committee 
Members, I am very honored and pleased to be here to talk about 
a subject that is very interesting to me. My interest in this 
field is twofold. I have the academic interest that you 
mentioned. I wrote the book. In the process of writing that 
book, for better or worse, I probably had occasion to review 
more judicial disqualification precedents than probably anybody 
else on the planet.
    But I also have a practical interest in this field as well. 
I have acted as a consultant or expert witness in dozens of 
disqualification proceedings, and in that capacity I had 
occasion to experience some of the concerns that Chairman 
Conyers alluded to, which is that not all litigants are very 
happy with the way that the system works. And in fact, a great 
many litigants don't believe that they are getting justice when 
they go before American courts.
    But I didn't come with an ox to gore or with any kind of 
agenda. I was asked to testify, and I said I would, because I 
thought with my background I might be able to provide a 
valuable resource to the Committee. My first step in that 
process was to provide you with some written testimony in which 
I basically tried to outline what the status of Federal recusal 
law is at this point and how it got to be that way.
    I don't know if you have had a chance to look at it yet, 
but Chairman Conyers characterized this panel as brilliant 
scholars who think there is nothing wrong with the law. I don't 
know if the first half of that statement applies to me, but I 
know the second one doesn't. I seriously believe there is a 
good deal that is wrong with Federal judicial disqualification 
law as it exists today.
    I talked about a few problems in my testimony. I didn't go 
into great depth. The main thing I alluded to was one of the 
two statutes that Judge McKeown referred to, 28 USC section 144 
which is on the books today, along with section 455. So 
currently, the Federal Government has two different Federal 
disqualification statutes.
    Nobody, including the courts, seem to understand how they 
are supposed to interact between each other, and the 3problem 
is only partly mooted by the fact that the Supreme Court 
decided in 1921 not to enforce section 144 in the manner that 
Congress had intended.
    I was told that one of the issues that might be up for 
discussion by this Committee is the possibility of enacting 
what is known in jurisdictions that have a preemptory challenge 
or preemptory disqualification statute; 28 USC section 144, as 
enacted by Congress in 1911, was intended to be exactly that, 
but the Supreme Court refused to enforce it in that manner. And 
as I think Professor Geyh has said, it has now come to be 
thought of as dead law by a lot of scholars.
    I had several other things to say that I won't have time to 
say, so instead of doing that, I would like to address a couple 
of the other issues that Chairman Johnson and Chairman Conyers 
brought up.
    First, should a court explain its reasons for why or why 
not it has chosen to recuse itself? I think the answer to that 
is obvious; but one of the problems that is caused by not doing 
it may not be so obvious.
    I have a very lengthy book on judicial disqualification; 95 
percent or more of all of the precedents in there are cases in 
which disqualification motions were denied. The reason that is, 
is because judges do recuse themselves in a great many 
circumstances. A lot of judges are very conscientious about 
doing so. But very few judges who recuse themselves take the 
time to write an opinion explaining why they did so. In 
contrast, many judges who don't disqualify themselves write 
lengthy opinions explaining why they are not disqualifying 
themselves.
    As a result, another problem we have with the law is people 
who are trying to figure out what the law on disqualification 
is may get a skewed idea of what they should expect when they 
go into court.
    Let me say one last thing in the small amount of time 
allotted.
    Ranking Member Coble alluded to Robert Young's submission, 
and I haven't seen it, obviously, on the Michigan experience 
with judicial disqualification.
    The Michigan experience has indeed been very interesting. 
In 2003, a new justice on the court, Justice Weaver, was asked 
to recuse herself in a case, but was told that judges aren't 
supposed to explain. It is an unwritten tradition of the 
Michigan Supreme Court that judges don't explain the reasons 
why.
    She researched it and came to the conclusion that that was 
false, and what ensued has been a donnybrook in the Michigan 
courts that has lasted for years about whether judges do have 
the requirement. And that is something we can talk about if you 
have further questions.
    Thank you.
    Mr. Johnson. Thank you, sir.
    [The prepared statement of Richard E. Flamm follows:]
                 Prepared Statement of Richard E. Flamm



                               __________

    Mr. Johnson. I don't know if the panel heard those rings 
going off. It is a call for us to go do what we are supposed to 
do, which is to press that button yes, no, or present. We have 
about 10 minutes left on the votes. I think it would be wise 
for us to knock off here. We will recess and come back and have 
the rest of the opening statements.
    We have three votes and I would suppose we will be back in 
about half an hour.
    Mr. Conyers. Mr. Chairman, perhaps with a group as 
distinguished as this, many of these problems can be resolved 
by the time we come back from the floor.
    Mr. Johnson. I am sure that many would fully appreciate 
promptness, a prompt decision on dealing with such an important 
area.
    [Recess.]
    Mr. Johnson. Okay, ladies and gentlemen, we are back in 
session. The next witness that we will hear from is Mr. Volokh.

TESTIMONY OF EUGENE VOLOKH, GARY T. SCHWARTZ PROFESSOR OF LAW, 
           UNIVERSITY OF CALIFORNIA, LOS ANGELES, CA

    Mr. Volokh. Thank you very much for inviting me to testify. 
It is a great honor and privilege to be here. Much of my recent 
interest in this area stems from my having participated as a 
lawyer in the Caperton v. A.T. Massey Coal Company case, but I 
am not here as a lawyer for any party. I am expressing solely 
my own view as an academic. In any event, since the case, after 
the Supreme Court, has returned to the State court system, 
nothing that Congress is likely to do in this area will have 
any bearing on that case.
    Mr. Johnson. Let me stop you and ask you whether or not 
your mike is on.
    Mr. Volokh. The green light is on, but maybe I am not 
speaking into it. Is this any better or----
    Mr. Johnson. No, it is not. But that is not your----
    Mr. Volokh. Is this any better?
    Mr. Johnson. No, but go ahead. Just try to speak a little 
louder.
    Mr. Volokh. My main interest in this area has to do with 
the constitutional standards having to do with recusal, which, 
of course, are a very small part of the recusal picture. As a 
result I also have some thoughts on the substantive rules of 
recusal.
    Obviously the procedural matters as we have heard discussed 
here are also very important. On those, I would largely defer 
to my colleagues who are much more knowledgeable on this. Also 
in a discussion with counsel, I suggest that it might speak 
more broadly about some of the issues that this raises. So I 
want to just take a big-picture view of appearance of 
impropriety standards and the rules having to do with recusal. 
I hope that this is helpful but perhaps it is too big a picture 
view.
    It is often tempting for discussions of this subject to 
turn quickly to appearance of impropriety standards or, in 
fact, to follow the Federal statute standards that focus on 
when a judge's impartiality might reasonably be questioned and 
saying that whenever that might happen, when the impartiality 
might reasonably be questioned, the judge ought to recuse 
himself.
    I want to suggest that the matter is considerably more 
complex than that. It is complex because judges are people, and 
are people who come to the court, and who while they are on the 
court acquire various things. They acquire, for example, 
political connections. Generally, to be appointed a Federal 
judge, one needs the backing--obviously one needs to be 
appointed by a President--one needs the backing of State 
senators. One often gets into that position as a result of an 
extensive career, much of it in with political connections.
    One also acquires opinions and past statements often about 
controversial issues. One acquires friends and former 
colleagues. So, for example, especially once they are judges, 
judges have law clerks who often become litigants before them. 
And of course, many judges in small towns know many--excuse me, 
I shouldn't say litigants--but lawyers before them. Many judges 
in small towns know most of the local lawyers because there are 
only so many lawyers traveling in their circle.
    Judges acquire spouses and families, many who have business 
interests of their own. Judges may acquire assets. Even though 
of course they don't continue to have side jobs, there are 
assets they continue to have.
    Judges also in addition to acquiring friends, they acquire 
enemies. People, for example, may harshly criticize them in or 
out of court, or people may oppose their confirmation by the 
Senate, may testify against them or, for that matter, in favor.
    So as a consequence, decisions by judicial recusal rules 
have to take into account a bunch of different interests, and 
not just interest in preventing even the appearance, just 
reasonable person of possible partiality. To take one example, 
I would take it that a reasonable person who hasn't really 
focused on the matter would say that if somebody has called the 
judge highly pejorative names, if somebody has had a press 
conference condemning the judge as a Fascist and a crook, for 
example, that might leave the judge's impartiality to be 
reasonably questioned. After all, judges are human beings who 
may take umbrage at that and may end up holding it against the 
person. But we can't have a system in which that in which that 
leads to automatic recusal, because then people can just judge-
shop simply by insulting enough judges.
    Likewise, my guess is that many perfectly reasonable 
laypeople, when they hear that a case is being argued before a 
judge by somebody who has clerked for the judge--that is often 
a very close relationship which leads often to enduring 
friendship or at least close acquaintanceship--they may say 
well, there is something potentially improper about the judge 
knowing one of the lawyers; yet that is certainly not a Federal 
court practice, to require recusal in such cases. And before 
the U.S. Supreme Court, many of the top, top lawyers are ones 
who had clerked for the very justices before whom they are 
arguing.
    Of course we want to make sure that judges are impartial. 
To the extent possible, we want to preserve the appearance of 
impartiality, but we have to balance that against a lot of 
other factors: the fact that we want to have people be able to 
criticize judges without having that automatically form the 
basis for recusal; that we don't want judges to be hermits; 
that we want judges to be able to be judges in the same area 
where they grew up and acquired many connections and practiced 
law.
    So as a consequence, I just want to caution against broad 
discussion of an appearance of impartiality as a legal 
standard. It is in some measure the legal standard, but it has 
ended up becoming something other than what the words seem to 
appear. It has ended up generating a bunch of rules, such as 
the extrajudicial source rule, that try to clarify it and make 
it more precise and in some measure lead to absence of recusal, 
even when quite reasonable people might conclude there is some 
question about the judge's partiality. I think that that has to 
be recognized, and before people get upset in particular 
situations about the possibility of appearance of impartiality, 
they should recognize that sometimes there are other factors 
that need to be balanced against it.
    Mr. Johnson. All right. Thank you, Professor Volokh.
    [The prepared statement of Mr. Volokh follows:]
                  Prepared Statement of Eugene Volokh




                               __________

    Mr. Johnson. Now we will have the opening statement of 
Professor Reimer.

  TESTIMONY OF NORMAN L. REIMER, EXECUTIVE DIRECTOR, NATIONAL 
    ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, WASHINGTON, DC

    Mr. Reimer. Mr. Chairman, Ranking Member Coble and 
distinguished Members, thank you for holding the hearing on 
this important issue, and thank you for inviting the National 
Association of Criminal Defense Attorneys to express our 
concerns and suggestions.
    I want to augment just one aspect of my testimony and 
propose one very concrete step that Congress can take to 
ameliorate the corrosive impact of electioneering upon the 
reality and perception of an independent and impartial 
judiciary. I don't hold myself out as an expert on the law of 
judicial recusal nor as an expert on the scope of permissible 
conduct in judicial elections. You have got a great panel of 
experts that can speak much more eloquently to those issues. 
Rather, I speak on behalf of the Nation's Criminal Defense Bar 
and the hundreds of thousands of accused persons each year who 
are most keenly impacted by judicial campaign rhetoric and the 
resulting judicial behavior when reelection or retention 
approaches.
    There is no greater risk to fundamental constitutional 
rights than the risk borne by the accused who appear before 
judges who must pick their way through the minefield of 
judicial election. And in this regard I note that this problem 
is to a large extent a State problem where the Congress' role 
is obviously limited.
    Indeed if you consider the Caperton case, which was the 
genesis or one of the geneses for the Committee holding this 
hearing, look at what that case was. It was a battle, a civil 
fight over land rights and ultimately money. It had nothing 
whatsoever to do with criminal law. The rights of the accused 
are fundamental constitutional rights. But the means of 
dislodging the sitting judge was a blistering diversionary 
attack upon his decision-making in criminal matters.
    This tactic is replicated time and time again in virtually 
every jurisdiction that elects its judges. As a result, the 
candidate who emerges victorious is often the one that espouses 
the most anti-defendant, pro-prosecution points of views.
    In answer to Ranking Member Coble's question as to whether 
this is a genuine problem or merely anecdotal, I think it is a 
genuine problem. I think that the pervasiveness of it, 
particularly in its impact on the criminal justice system, is 
one of the reasons, as Chairman Conyers noted, that so many 
people don't feel, don't feel that they got a fair shake.
    Imagine what it is like to be called into court to answer 
an accusation and know that the judge who will decide the 
critical issues in the case, including whether or not you 
perhaps will receive a prison sentence, has promised to ``stop 
suspending sentences'' or stop putting criminals on probation 
or has stated that she doesn't believe in leniency or, worse, 
pledge to rule a certain way with certain parties and 
witnesses.
    All of these examples are cited in our written testimony. 
They are real. They are documented. The roadkill here is not 
just the rights of the accused whose cases are judged by judges 
who have to worry about how a potential adversary may 
mischaracterize their decisions. The true victim is the 
perception of fairness and impartiality of the judiciary that 
is the moral underpinning of our justice system.
    The people's confidence in the system hinges on the 
perception by the guilty, by the innocent, by all who are 
touched by the criminal justice system and the larger 
community, that judges are not predisposed to decide a case one 
way or another.
    There can be little doubt that a potent solution lies in 
the adoption of recusal rules with some real bite. Strong 
recusal requirements may in the first place deter the 
objectionable rhetoric by giving all judicial candidates cover 
to avoid it. Now, whether or not a Federal solution is 
achievable consistent with our fundamental principles of 
federalism is questionable, but what Congress can do--and I 
would argue should do--is expose the full extent of the 
problem. You should shine a light on the practices and 
consequences that are undermining our system of justice.
    There is considerable evidence for the proposition that 
there is a provable nexus between election campaign rhetoric 
and judicial outcomes.
    Now, I know the Committee for Economic Development has 
issued a report called Justice for Hire which has some great 
examples in there, but I will just tell you that in my own 
practice, which I was a practicing attorney, as you noted Mr. 
Chairman, before I came to the association, and I will never 
forget once representing a young man who was a passenger in a 
car from which a large quantity of drugs had been seized from 
the trunk. The testimony at the hearing was so preposterous 
that even the seasoned court officers were giggling at the 
police account. At the end of the testimony, the judge called 
the lawyers up to the bench and said, Well, what am I going to 
do here? I said, Well, Judge, it looks like you are going to 
have to suppress the evidence; to which the judge responded, 
Mr. Reimer, I know it is a bad stop, but I can't suppress. I 
have got to run next year. Will your client take probation?
    Now, rather than rely on anecdote, conjecture, and a small 
array of independent studies, Congress should authorize funding 
for a research grant to study the relationship between judicial 
campaign speech and judicial conduct in criminal proceedings. 
If the research confirms what many of us suspect and believe, 
and what some of the studies that have already been done show, 
it will provide an overwhelming impetus for States to act to 
listen, to some of the suggestions that we have heard here 
today, and to accept Justice Kennedy's invitation, in his 
opinion in Caperton, to adopt recusal standards that are more 
rigorous than merely the due process floor that was set in 
Caperton.
    This would be a great step forward, and I can tell you that 
one thing is certain: If the present trajectory is continued, 
the combustible mix of electoral politics, money, and unchecked 
rhetorical intimidation will destroy the people's trust in the 
independence of our judiciary. Thank you.
    Mr. Johnson. Thank you Mr. Reimer.
    [The prepared statement of Mr. Reimer follows:]
                 Prepared Statement of Norman L. Reimer





                               __________
    Mr. Johnson. And last, but certainly not least, Professor 
Hellman.

TESTIMONY OF ARTHUR D. HELLMAN, PROFESSOR OF LAW, UNIVERSITY OF 
  PITTSBURGH, SALLY ANN SEMENKO ENDOWED CHAIR, PITTSBURGH, PA

    Mr. Hellman. Thank you, Mr. Chairman. The starting point 
for much of today's discussion is of course the Caperton 
decision which deals with recusals in State courts. One year 
before the Caperton decision, two Justices of the United States 
Supreme Court expressed concern about the impartiality of a 
Federal judge. The judge was Manuel Real of the Central 
District of California. He was sitting by designation in the 
District of Hawaii, and the case involved competing claims to 
funds in a brokerage account that had been established by the 
former Philippine President Ferdinand Marcos. Justice Stevens 
in a dissenting opinion described some of the things that Judge 
Real had done in the case. He then said, ``These actions 
bespeak a level of personal involvement and desire to control 
the proceedings that create at least a colorable basis for a 
concern about his impartiality.'' He suggested that it would be 
best if the case were transferred to a different judge on 
remand. And Justice Souter agreed.
    Well, the case went back to the district court. Judge Real 
continued to preside over those proceedings. Some of the 
parties requested an accounting. They got one but it wasn't 
very satisfactory. So they appealed to the Ninth Circuit.
    Just last month the Ninth Circuit handed down its decision. 
The court noted that Judge Real's written accounting was filled 
with cryptic notations. His oral accounting contradicted the 
record on several points. All this, said the panel, confirmed 
the doubts about his impartiality that Justice Stevens and 
Justice Souter had expressed. So the panel did order the case 
reassigned to another judge.
    Well, this wasn't the first time that Judge Real has been 
criticized by his fellow judges for departing from the ideal of 
neutrality. In January 2008, he was formally reprimanded by the 
Judicial Council of the Ninth Circuit, under the 1980 
misconduct statute that you heard about a moment ago. The 
council found that Judge Real improperly intervened in a 
bankruptcy case to help one litigant at the expense of another.
    Well, there was another misconduct proceeding against Judge 
Real, this one a pattern and practice complaint. It was 
investigated very thoroughly by the Ninth Circuit Judicial 
Council. After that investigation, the council concluded that 
Judge Real failed in many cases to give reasons for his 
decisions when the law required reasons. The council pointed to 
his obduracy in implementing directives from the appellate 
court. It found that his actions had caused needless appeals, 
unnecessary cost, undermined the public's confidence in the 
judiciary. These occurrences were more than anecdotal, more 
than occasional.
    Well, that is a pretty damning recital, isn't it? And you 
would think that these findings would lead to some sort of 
discipline, but they did not. The council dismissed that 
complaint and it did so because the national committee, the 
Judicial Conduct Committee, in an earlier phase of these 
proceedings, had said that a pattern or practice of this kind 
could be misconduct only if there was clear and convincing 
evidence of willfulness. The council found that there just was 
not.
    Well, the 1980 act is not the subject of this hearing, and 
this isn't the occasion to debate the correctness of that 
ruling. The point, rather, is that Judge Real's actions in the 
Philippine case and the bankruptcy case were not aberrations in 
his very long career on the bench. They were all too 
representative of a pattern of behavior that is totally at odds 
with judicial impartiality and the rule of law, the goals that 
Justice Kennedy and the Court spoke of in Caperton.
    Mr. Johnson. Professor Hellman, if you would sum up. Though 
I really want to know what happened to this judge, but if you 
could sum up because the red light is on. Thank you.
    Mr. Hellman. Sure. Judge Real's behavior doesn't fit any of 
the standard categories of bias or partiality. A new kind of 
law is needed, and one law that I think would be helpful would 
be a peremptory challenge law that is discussed in some of the 
other statements. I would be happy to elaborate on that for the 
panel. Thank you.
    Mr. Johnson. Thank you, sir.
    [The prepared statement of Mr. Hellman follows:]
                Prepared Statement of Arthur D. Hellman




                               __________

    Mr. Johnson. Now we will go to questions. I will take the 
first questions. Each one of us will have 5 minutes to ask 
questions.
    In my statement, I have addressed the Siegelman, Walker and 
Porteous cases. Clearly these cases exist because of some 
default in our Federal judicial recusal laws. How can we mend 
the holes in our laws on the front end to prevent these types 
of issues on the back end? I want all of the panel members to 
respond to that, starting with Professor Hellman.
    Mr. Hellman. Well, I will take up the suggestion of a 
peremptory challenge law. This is something that I think 19 
States have adopted. Basically the way I would work it is that 
each side would have one peremptory challenge of the judge. You 
would just say, I think this judge should not sit on the case. 
The judge would not sit on the case. Congress can build on the 
experience but I would not put it into the judicial code right 
away. I suspect that the Judicial Conference will express 
concerns about it.
    What I suggest, rather, is a pilot program to be monitored 
by the Federal Judicial Center which would report to Congress 
and the Judicial Conference. And based on that report, you 
could decide whether to expand the program, modify it, or 
discontinue it. So I think that would take care of a lot of 
those problems.
    Mr. Johnson. Thank you, Professor. Mr. Reimer.
    Mr. Reimer. Yes, Mr. Chairman. Our association has not 
taken a formal position on the various options that are out 
there. We have concerns about separation of powers in terms of 
how the judiciary regulates itself. But we do believe that 
consideration should be given, whether it is in the first 
instance by the courts and their own governing mechanism or 
ultimately by Congress, to several different remedies, 
including the concept that motions for recusal should be 
decided by other judges: There is also a very interesting 
suggestion of a peremptory challenge of a judge, as well as the 
most important, which is full disclosure of any potential 
conflicts.
    Mr. Johnson. Thank you, sir. Professor Volokh.
    Mr. Volokh. I wish I had some suggestions that I felt 
confident enough in, but I am afraid I don't. I would be happy 
to yield to my colleagues.
    Mr. Johnson. All right. Thank you, sir. Professor Flamm. 
Well, I called you Professor but----
    Mr. Flamm. I like it. Without knowing the specific facts of 
all the cases, I am not sure if I can properly opine on what 
provisions might prevent some of the problems you have alluded 
to.
    The peremptory challenge provision that has been suggested 
is one that I think has worked very well in my home State of 
California. It seems to be fairly popular with attorneys and 
parties, and most judges but to my knowledge aren't too upset 
with it. I am not sure if it would cure any of the problems in 
the cases you have referred to, however, because peremptory 
challenge usually has to be exercised right at the outset of 
the case or right at the outset when a litigant first learns 
the identity of a judge. If they don't exercise it at that 
point, they can't do it later on. And usually when a motion to 
disqualify is based on bias, in most cases the bias doesn't 
appear until much later in the case. I am not sure if 
peremptory challenge would solve the problem in the specific 
cases you refer to.
    I am not exactly sure of what would solve all the problems, 
but a more rigorous enforcement of the laws Congress has 
already enacted would certainly be a start.
    Mr. Johnson. Thank you, sir. Professor Geyh.
    Mr. Geyh. As I testified before, I think that the business 
of asking a different judge than the one who stands challenged 
would be a useful place to start, both for judges who are well-
intentioned and think that they are impartial when they are 
not, and for judges who are less than well-intentioned who 
could conceivably be outed by such a process.
    The problem is--and this refers back to something Mr. Flamm 
mentioned--in some of the cases we are talking about here, we 
have very late motions being filed or none at all for 
disqualification, and the success of this process does depend 
to no small extent on people filing timely motions, which 
complicates my analysis because we can't refer something to 
another judge if a motion isn't filed in the first place at the 
appropriate point in time.
    Mr. Johnson. Thank you, sir. Last but not least, Judge 
McKeown.
    Judge McKeown. Let me first say that it is always difficult 
to generalize from three specifics or anecdotal situations. 
Nonetheless, it may be worth studying to see if there is 
something in the current system that didn't work.
    But I think, as the other gentlemen have noted, that in the 
case of certain claimed dishonesty or direct flouting of the 
law that it is very difficult to write that into a procedure, 
and that there may be situations that can't be cured other than 
by the proceedings that have gone on. Judge Porteous, as you 
know, was referred to the House by the Judicial Conference 
itself.
    I would like to comment very briefly, if I might, on the 
peremptory challenge issue or the one strike, just to let you 
know that this issue has been considered in the past by the 
Judicial Conference which opposes the peremptory 
disqualification of judges for several reasons. One, that it 
does encourage judge-shopping. Second, there is concern that 
that kind of a peremptory challenge would threaten the 
independence of the judiciary. And third, that it poses some 
very real issues in terms of case management, particularly, for 
example, in small districts, where an example might be the 
Southern District of Georgia where you only have three judges 
and in certain towns you only have one judge. If you have this 
kind of automatic disqualification there are very real concerns 
for both parties and the system with respect to cost and delay. 
The Federal districts are often very large, unlike the States, 
which generally operate in a county system.
    So there are a number of reasons that the Judicial 
Conference opposed the peremptory disqualification, but of 
course we have in place the motion for recusal. If that motion 
is made, then there is quite a regularized procedure for that 
to move through the courts and on appeal.
    Mr. Johnson. Thank you, Judge. My time has expired. The 
next person to ask questions will be the Ranking Member, Mr. 
Howard Coble.
    Mr. Coble. Thank you, Mr. Chairman. At the outset I said it 
appeared that we had a formidable panel. My words were 
prophetic; we do indeed have a formidable panel. Good to have 
you all with us.
    Professor Hellman, this may have been touched on, but I 
want to revisit it. Would a recusal system that allows a 
litigant one peremptory challenge per case be subject to abuse, 
A; and if so, what kind of abuse and how could this be checked?
    Mr. Hellman. Thank you, Mr. Coble. Yes, it is subject to 
abuse. It can be, and the States have had some experience with 
that. I believe that the proposal was actually made to Congress 
by the late attorney John Frank among others in 1973. At that 
time, he pointed to experience in the States. We have now had, 
what, 30-plus more years of experience to draw on. So I think 
there is the risk. If you write the statute correctly and if 
you adopt my suggestion of doing it initially as a pilot 
project, those risks can be minimized.
    Mr. Coble. Professor, why would you not allow or permit a 
peremptory challenge in criminal cases?
    Mr. Hellman. Well, first, I would. I am not opposed to 
them. The reason I suggested starting with civil cases and not 
including the criminal is twofold. First, every criminal case 
includes the United States Attorneys Office as a party, many of 
them include the Federal defender. And if either of those 
organizations decide that a particular judge could not hear 
their cases fairly, you would be in real trouble. Now I don't 
think they do that without great provocation. But if it 
happened it would be very disruptive.
    The other--and Mr. Reimer may have something to say about 
this--it may be that each defendant in a criminal case would 
have to have his own right. And you have all these multiple-
defendant narcotics conspiracy and other conspiracy 
prosecutions today, and that would be really disruptive. 
Whereas in a civil case, you could simply say, One to a side 
and that is it, no matter how many parties. So it is not 
opposition. It is just some practical concerns at the initial 
stage.
    Mr. Coble. I thank you, sir.
    Mr. Reimer, you were sort of tough on candidates who accept 
contributions from third parties and who champion tough-on-
crime philosophy. I am not being critical of you about that. 
What should happen to a candidate who campaigns on the ground 
that he opposes the death penalty and that he is subsequently 
elected? Should he be recused from hearing capital cases?
    Mr. Reimer. Well, if the determination rests, as I believe 
it does now, pretty much exclusively in the hands of the jury, 
I don't think that that necessarily is a disqualifier.
    Mr. Coble. Would the same answer apply to, say, attorneys 
or candidates who accept contributions from trial lawyers? 
Should they be recused on tort cases?
    Mr. Reimer. Well, on the issue of money, you have the 
Caperton case which basically talks in a very vague sense about 
the relative amount of money and the likelihood that it would 
impact the person's or the judge's ability to be fair.
    I am more concerned and my association is more concerned 
less about the money itself than what the candidate is saying 
about how they will decide cases. And to me, that is a 
different slant on it than Caperton, where there was at least 
an appearance of a connection to one of the parties. That is a 
separate issue.
    But when you have people going out there and saying, I am 
going to--I am always going to deny probation, for example, 
that is not a fair adjudication. Even if the judge makes the 
right decision in a particular case, the litigant is not going 
to feel that they got a fair shake.
    Mr. Coble. I got you.
    Professor Volokh, your written testimony suggests that you 
don't think the current system is plagued with this many 
problems. Do you think some critics exaggerate the deficiencies 
of the system for other reasons?
    Mr. Volokh. Every system has quite serious problems in 
particular cases. Some of them are--sometimes they may 
represent systemic problems with the system. Some of it may be 
the inevitable errors with any system that has humans in it.
    Judge Porteous, for example, is being considered for 
impeachment. That, as I understand it, is for pretty serious 
transgressions. It is very hard to set up recusal rules that 
could adequately cabin people, judges, who engage in such 
transgressions.
    Likewise, as I understand the second case that was 
mentioned, there was no motion to recuse filed before a judge. 
It is very hard to see that, declining to recuse in that case, 
as an example of a systemic problem with the recusal system 
because, as I understand it, all recusal systems are premised 
on a motion being filed in the first instance. So I am sure 
there are problems there as with any other system.
    While I have heard some pretty systemic problems, at the 
very least alleged, I think with considerable weight behind 
them as to certain State systems, my sense is that the Federal 
system seems to have the kinds of problems that any working 
system or one that relies on human beings would have.
    Mr. Coble. Thank you, sir. I see my red light is 
illuminated. I thank you for being with us.
    I yield back, Mr. Chairman.
    Mr. Johnson. Thank you, Mr. Ranking Member.
    Next up at the plate is Chairman Conyers of the full 
Committee.
    Mr. Conyers. Thank you, Chairman. This has been a 
fascinating discussion this afternoon, necessitated by the fact 
that there is an investigation of an impeachment process going 
on in the room that this hearing was supposed to have been 
heard of a Federal judge. Only last week or the week before, we 
resolved another case of a Federal judge who reconsidered and 
decided to terminate his career as a judicial officer. And what 
this discussion has demonstrated to me, Chairman Johnson, is 
that this is a much more intricate subject than first meets the 
eye. It is complex.
    Of course, I have to acknowledge quickly that lawyers like 
to make issues complex as a matter of profession perhaps. But 
behind the question about what to do and all of the issues that 
are involved in this, there is another question that has 
occurred to me and I think every Member of this Subcommittee. 
That is the larger question of the fairness of the American 
system of justice, period, without particular reference to the 
judges, State or Federal.
    One of the things that draw us and our staff to is, how do 
you do that? It is so fascinating, isn't it, that here we are 
in a country that has been working through this process for 236 
years or so, and there are still some very big questions out 
there that have yet to be resolved.
    I would like to just--please feel free to interject your 
views at any point in this. I am approaching this as the 
Chairman of the Committee, that I went to the Speaker of the 
House then to it appeal that I be the first African American in 
the history of the Congress to be placed on the Judiciary 
Committee. And he was impressed with that. Speaker John W. 
McCormack was his name.
    At that time there were only lawyers could be on the 
Judiciary Committee; no scholars or professors or business 
people. We have relaxed that now. We don't do that anymore. In 
the Senate Judiciary Committee, they adopted the same process.
    So we will be looking, beyond this afternoon's hearings, 
for any subsequent recommendations of how we ought to proceed 
from you and any ideas that may come from your colleagues or 
anybody in the system, because this is the way democracy works 
at its best, when we have a candid review.
    Now, I came to Congress working with Bob Kastenmeier. I am 
going to tell him about you and what you did and said here, 
Professor, because much of it was very good. Could I get an 
additional minute, Mr. Chairman?
    Mr. Johnson. Without objection.
    Mr. Conyers. What I would like to do now is just to invite 
all of you, if our Chairman would indulge, to let you tell us 
how this subject matter relates to the greater issue that hangs 
over us all as members of the bar and members of the court in 
terms of how these two come together and how we ought to look 
at this exciting part of the Federal legislature.
    The Judiciary Committee reviews constitutional amendments 
that are proposed by the Members; jurisdiction over the 
criminal justice system and the Federal corrections system as 
well; intellectual property matters of trademark, patents, 
copyrights, all exciting subjects, treaties even. If any of you 
would just like to give us a parting thought about how you see 
this discussion I am trying to raise, I would be very grateful.
    Mr. Geyh. I would be happy to offer a 30-second answer. It 
seems to me that the overriding theme of the committee's work 
is access to justice in all of the variety of forms that you 
articulate. And that that means that we need to worry, in order 
to provide access to justice, about how judges are selected, 
which is what Mr. Reimer is talking about; how judges are 
disciplined and removed, and Judge McKeown talked a little bit 
about that process; and how the courts are administered, which 
is beyond the scope of this hearing but is very much in your 
bailiwick.
    To me, the problem is a perennial one because access to 
justice is an always-moving target. It is not a matter of 
getting it right because there is no way to get it right. You 
can only do the best you can at a moment in time, and that is 
really what the story is all about. I think right now we are at 
a given place in time and worrying about disqualification rules 
and what is the best system for the current place and time, 
that might not have been the best system 50 years ago. But that 
is fine. That is why there is always a Congress.
    Mr. Reimer. If I can, just to amplify on some of the points 
I was making before, we have approximately 2.5 million people 
in prison. We have a conviction mill in our misdemeanor courts 
that is an absolute disgrace. So we have countless numbers of 
our citizens passing through these systems. The mix of money 
and rhetoric and electioneering is undermining the faith of the 
people in the independence and impartiality of the judiciary.
    That is the problem, and I don't think that one hearing is 
the answer. I proposed a study. I don't think one study is the 
answer. But we certainly have to shine a light on it if we are 
going to correct it, because, ultimately, if the people don't 
have confidence in the judicial system, we are in trouble.
    Mr. Conyers. Your Honor.
    Judge McKeown. Thank you. Mr. Chairman, I appreciate that 
you have recognized how intricate and complex these issues are 
and not just subject to a simple solution. But something that 
you said really was brought home to me and that is the 
importance of fairness in the system.
    On that point, I think it is important, not just the actual 
fairness of the system, but the public's perception of the 
system. That is something that I think the Committee obviously 
is looking at here. What can we do?
    Well, certainly we welcome, on the part of the Federal 
judiciary, simply having the subject of ethics being so 
prominent. It is important to us. It is important to the 
public. And we go back from this hearing with a renewed mission 
and vigilance to look at our ethics procedures and to continue 
with our education and with our advice.
    I am happy to take back to members of the judiciary the 
many comments we have gotten from the Members, your thoughts 
and your concerns. It is a privilege to be able to be here, and 
we welcome ethics being first and foremost. It is important to 
us. It is important to the public.
    Mr. Hellman. I will just add one thing to that. I think one 
of the problems that underlies some of the concerns is that 
judges are so used to carrying on most of their work in 
confidence that they don't always realize how important 
transparency is. I think one of the virtues of this hearing is 
that it emphasizes that. And I am sure Judge McKeown will go 
back to the Judicial Conference to the Circuit Council and to 
the other judges, and that will help to build understanding of 
the importance of not just doing the right thing, but telling 
people what is going on.
    Mr. Conyers. I thank you very much, Mr. Chairman.
    Mr. Johnson. Thank you, Mr. Chairman.
    Is there anyone else that cares to respond? Okay. All 
right.
    Well our next questioner--interrogator, some say--is the 
Honorable Sheila Jackson Lee out of Houston, Texas.
    Ms. Jackson Lee. Mr. Chairman, let me thank you very much 
for this very provocative hearing. And I think the Judiciary 
Committee, as I have come to understand, has a dominant role 
both in the business of this Congress, but also the important 
business of justice in this Nation. I believe in the optimism 
of America. And frankly believe that we can design the 
appropriate framework for the Federal bench to contemplate this 
whole area of recusal.
    I would offer to say that as I listened to one idea--and I 
love creative thought about a preemptive strike of sorts--that 
I would only offer this expanded explanation. The Federal 
courts saved me, as a representative of a body of people that 
were second-class citizens for centuries. And I am reminded of 
the courts that Thurgood Marshall went in, and was able to find 
Federal judges that would provide the opportunity for justice, 
the opportunity in Brown v. Topeka, and Justice Warren to be 
able to open the doors for opportunities for those individuals 
like myself. It has happened for women. It has happened for 
Latinos. It has happened for others of less economic 
conditions. So I am sensitive to this question of recusal or 
the automatic recusal.
    I believe that our basic framework should be in the 
integrity of our judiciary. But at the same time when that 
integrity is pierced, we lose. The justice system loses. 
America loses.
    And I do want to associate myself with the Chairmen, both 
the Chairman of the full Committee and the Chairman of the 
Subcommittee, on cases such as the former Governor of Alabama, 
Peter Polyvios and Vicky Polyvios, a case or cases that I have 
followed. The interesting point about these cases is that they 
include prosecutorial abuse where these petitioners are seeking 
documents that would help produce prosecutors and agents for 
interviews. We don't know whether there was a hand-in-glove 
relationship between prosecutors and judges. The Jenna Six case 
I consider expanded, because it deals with prosecutorial abuse 
where there was inaction as opposed to action.
    So my point would be that we need to look at these 
questions with a very keen eye and a sensitive heart and mind, 
because what we do want to have happen is that lawyers can go 
into a court and find justice.
    So I ask this question: I think the overall problem that we 
have is a stigma that comes about when a judge recuses himself 
or herself. People begin to look for suspicious behavior, and 
it may be that that judge has the highest level of integrity.
    So my first question would be--and I would like you to go 
down the line. We need to develop from the highest levels the 
Attorney General's Office, the Judicial Conference, the Supreme 
Court, that recusal is not an indictment. It is not a 
conviction of that court and that judge, at the minimal level, 
if they decide to do that on the grounds of making sure there 
is integrity. My first question.
    The second question is: Do you feel that we have a system 
of justice where there are victims because a judge has not 
recused themselves, because there is conflict of interest? And 
if that is the case, we cannot tolerate it.
    I would appreciate it if we could start with the judge 
quickly on the stigma and how we can break that to make it all 
right for a judge to make a determination based on our criteria 
that they recuse themselves. If you could quickly go down 
because my time is short.
    Judge McKeown. Thank you. On that, I guess I would 
paraphrase yours to say recusal is not a four-letter word.
    Ms. Jackson Lee. I like that.
    Judge McKeown. We would like to have judges know that. I 
think we have made a good start at that. We have a number of 
these advisory opinions that start through all the reasons a 
judge should recuse, and we want judges to be mindful of that.
    With your comments in mind, I think it just renews the 
importance of education in this area, because recusal is good 
for the judiciary and for the public when done appropriately.
    Ms. Jackson Lee. And you know that justice has been denied 
probably in cases where that recusal did not occur?
    Judge McKeown. You know, I do not have personal knowledge 
of various circumstances. I have seen cases where it came up on 
appeal and the court of appeals either reversed a denial of 
someone who declined to recuse, or a case where the court of 
appeals said, yes, we believe it was improper for the judge to 
stay on the case, and we are going to reassign that case both 
through our statutory authority and through our inherent 
oversight over the district courts.
    Ms. Jackson Lee. Mr. Chairman, could you indulge me an 
additional minute so I could just go down the line and just 
include in there whether you believe justice has been denied. I 
ask unanimous consent, Mr. Chairman.
    Mr. Johnson. Without objection.
    Mr. Geyh. The first problem to which you allude is one that 
really is a cultural one within the judiciary. At common law, 
the notion that a judge could be biased was simply not even 
contemplated. It was an irrebuttable presumption that a judge 
was impartial, that he couldn't be challenged. And while we are 
past that now, I think there is still the norm that they are 
impartial. I think it is a fair norm.
    But getting to my earlier testimony, the problem is that 
judges are people too, and in the 20th century and beyond, we 
understand that judges as people, too, are subject to biases. 
So we need to reach that kind of agreement that, yes, we can 
presume impartiality without begrudging the fact that judges 
are human, too, and they are capable of the same biases and 
thoughts that others have. And when that happens and when they 
go over the top, they need to step down.
    As to whether justice has been denied, I am sure that it 
has. The problem is that the only circumstances we have in 
which a judge has done badly is typically in cases where they 
are outed. So we have a hell of a time figuring out about the 
great silence, but I am sure it has happened. Identifying cases 
is hard.
    Ms. Jackson Lee. Thank you.
    Mr. Flamm. There are certainly cases where justice has been 
denied, and there are an exponential number of cases beyond 
that where litigants believe justice has been denied. I guess 
the one thing I would say about that is that no system that 
Congress--no framework that Congress enacts is going to cure 
that. There are always going to be problems with the system. 
There are always going to be some litigants that don't believe 
justice was served.
    But as to the particular one that you alluded to, which is 
a mechanism for trying to alleviate some of that concern, the 
peremptory challenge, I think you have expressed a concern 
about a stigma associated with that. I think the opposite is 
true. I think that when there is no peremptory challenge, what 
tends to happen is that if a litigant is going to do anything 
at all, they are going to challenge a judge for cause and they 
are going to make a claim that the judge is actually biased. 
That is where judges tend to get their hackles up and there 
tends to be a real donnybrook and there tends to be more public 
attention. If a peremptory challenge exists, and it can be 
exerted in a timely fashion, there is usually no stigma 
involved at all.
    Ms. Jackson Lee. That wasn't my exact point, but that is 
okay.
    Mr. Flamm. I will just add, in my home State of California, 
where we do have the peremptory challenge right, judges don't 
even see the peremptory challenge. It goes directly to the 
clerk and a new judge is assigned. So there is no stigma. Maybe 
that is one of the advantages of the peremptory challenge 
system.
    I guess I should say that even in your home State of Texas, 
there is a peremptory challenge rule on the book now for 
visiting judges, and so far there has been no report that I 
have heard of any concern about abuse with that use of that 
statute.
    Mr. Volokh. One reason I am cautious about some of the 
procedural proposals is precisely because I think recusal 
should be seen as not something to be embarrassed about. And in 
fact it is good if judges in close cases, even if they think 
recusal isn't strictly necessary, step aside just to avoid any 
shadow of a doubt.
    Ms. Jackson Lee. Without the stigma.
    Mr. Volokh. Exactly. One problem, though, is that some of 
the suggestions might--I am not at all sure they will--but 
might have actually counterproductive effect along those lines. 
So for example, has has been called to encourage the 
publication of opinions explaining why a judge recused himself. 
That may be very good, but it might also leave judges in close 
cases to decline to recuse themselves because they don't want 
to set up precedent for themselves in the future, or they don't 
want to be seen as implicitly criticizing another judge who 
didn't recuse himself under similar circumstances. So in a 
sense, the ability to do a silent recusal actually encourages 
people to recuse themselves without having to give all the 
reasons and without having more attention. Perhaps it is still 
a good idea to have that, but once you consider some of these 
possible perverse consequences----
    But as to your second question, I am positive that in any 
system the size of the Federal judicial system, injustice has 
been done because of failure to recuse them and because of lots 
of other reasons. The question is: Are there particular 
proposals that will diminish the risk that injustice will be 
done, rather than substituting some other possible causes for 
injustice which might be as bad or worse?
    So the question isn't just, has it ever happened? I am sure 
it has happened. The question should be: Is there something 
that we think will materially decrease the risk of it happening 
without compromising other very important concerns?
    Mr. Reimer. I want to just confine myself to answering the 
two questions; but just, again, recognizing that the slant that 
we have on this is concern about what is going on in the States 
and particularly the 39 States that elect judges. First of all, 
court administrators should encourage a climate in which 
recusal is acceptable. In many jurisdictions, judges are 
saddled with huge dockets and there is a lot of internal 
pressure to move these dockets along. So we need to have court 
administrators say, Look, if there is the slightest question in 
your own mind, give up the case. It is not bad. You won't get a 
demerit for doing that.
    With respect to whether or not injustice has taken place, I 
don't know. I am sure that it has. But what I do know is that 
the perception of injustice is taking place. We can't know, 
because we can't look into the heart and mind of an individual 
judge to know whether or not their decision was colored by 
statements that they made before they took the bench or getting 
to the bench.
    I am not concerned about the heart and the mind. I am 
concerned about the mouth. If they say it, and a litigant goes 
before them and they make a decision, it is a perception that 
the person hasn't had a fair chance.
    Mr. Hellman. To start with the second question, 
unfortunately there almost certainly have been injustices in 
particular cases, because the cases are handled by judges who, 
as others have said, are human. The task for the judiciary and 
the Judiciary Committee and Congress is to minimize those and 
to build structures that will make them as infrequent as 
possible. I do think that the judiciary, as Judge McKeown said, 
takes its responsibilities in that very seriously. And on the 
question of whether a recusal is seen as an admission of a lack 
of impartiality, I am not sure that it is. I think that in many 
instances, it is seen as a judge conscientiously doing what the 
law requires him or her to do.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman. You 
have been very kind. I hope for the Polyvios, and others as 
well, we can get justice. I yield back.
    Mr. Johnson. Thank you.
    Next we will have questions from a battle-crusted gentleman 
who practiced law and was a litigator before he was elected to 
Congress from the great State of Illinois, Mr. Mike Quigley.
    Mr. Quigley. Thank you, Mr. Chairman. A great introduction. 
About 200 trials under my belt, and I can still say after 
surviving 10 years in Cook County, some of my best friends are 
judges. But the recusal system worked pretty well there. And in 
the criminal cases I worked on, you had an absolute right to a 
substitution of judge, and in very serious cases, too, which I 
will tell you from practical experience saved the system a 
tremendous amount of angst and problems. If you know anything 
about Cook County, it worked very well. It worked through the 
chief judge's office. So the judge didn't know about it unless 
the case was already before him. And then in a certain time 
frame, you still had the right to make a motion for 
substitution and a right of recusal. So I thought it worked 
quite well. It was very rare that you saw a judge find out 
about it or get offended by it.
    But as to the minority of judges--and I think it is a 
minority--who are deficient in some respects, in some cases, 
that can be ethically deficient or without the realization that 
they might have at least the appearance of impropriety, I 
always found it a very difficult time finding another judge 
willing to sit in judgment, and say I think my guy I go play 
golf with, or my partner, one of my fellow judges, you know, 
should step down in this because, as you say, I think someone 
said, besides the stigma, they are being accused implicitly of 
not being impartial. So is it harder to do it yourself? Or is 
it harder to do for somebody else that you worked with? So two 
professors I think mentioned that.
    I mean, if you could give us your assessment of whether or 
not you think judges can effectively sit in judgment of each 
other toward this sort of motion?
    Mr. Geyh. Your point is well taken. To me, a big part of it 
is the perception of justice. When you have the fox guarding 
his own henhouse, it creates more of a perception problem than 
when you defer the matter to another judge, another neutral.
    I think there is a study that the American Adjudicative 
Society ran in the 1990's which did reveal that it is hard for 
judges to rule on each other. A situation where, you know, in a 
variety of situations where the judge basically has to find out 
what the facts are in an inquiry--for example, in taking the 
Judge Porteous matter, where a lot of information was simply 
not disclosed because questions were not asked. If those 
questions were asked, for example, of the lawyers involved as 
to what they did or did not do vis-a-vis the judge, would they 
have perjured themselves? Or would they have answered directly? 
We will never know because the judge himself was the only one 
conducting the hearing, not someone else.
    I think your point is very well taken, that it is hard for 
a judge to rule on his colleague in much the same way as it is 
hard to rule on himself. So I think it is an important 
procedure to consider if for no other reason than I think it 
does protect the seemingly self-interested aspect of a judge 
grading his own paper.
    Mr. Flamm. Professor Volokh and I were discussing that 
during the break, and I mentioned that in California when a 
judge is challenged for cause, the motion is transferred to 
another judge, but it isn't one of the judge's colleagues. 
Typically a Superior Court judge in California, if they are 
challenged for cause, the motion will be transferred to a 
different superior court, and a judge from a completely 
different court will decide the motion.
    There has been no survey of how this has worked out and all 
of the evidence is anecdotal. But from everything that I have 
seen and heard, it seems to work pretty well, and I am 
certainly aware of a number of situations in which judges, 
California superior court judges, came down very hard on judges 
from other courts in saying that they should have recused 
themselves and didn't, when it is not clear that a judge would 
have come to the same conclusion if he was going to decide that 
motion himself, or if another judge on the same court was going 
to decide the motion.
    Mr. Quigley. If I could ask you a question, Your Honor, in 
your heart of hearts, in looking at this don't you think that 
issue and the issues of a judge reviewing themselves or putting 
themselves--is more challenged when it is a Federal judge, 
because they don't face reelection.
    Just from my own perspective, a judge who at least every 6 
years in Illinois has to be not reelected, but they have to be 
brought back by the voters in a different process. I just think 
it is human nature that a few of us, and we are all thin-
skinned, a few of us more than others, some wear black robes, 
but those who do it in Federal court, perhaps it is just human 
nature, and they might sense that they can't be touched, and it 
is just one more reason to challenge the system as far as you 
can.
    Judge McKeown. Well, I can't tell you as an empirical 
matter, but I can say that judges, Federal judges do in fact 
recuse on a regular basis and take themselves out of cases. I 
think they are comfortable, because within the system there are 
usually other judges to hear the case. So it does often happen 
that judges do recuse.
    I don't think there is a stigma about recusal; but you 
raise a question as to whether someone else should hear the 
case. The Judicial Conference hasn't taken a position on that 
particular point, and certainly it might merit some additional 
inquiry and consideration.
    Questions one might have if you were looking at this, is 
there some kind of a threshold in terms of frivolousness or 
patent frivolity? A second point would be, what would be the 
criteria for referral to another judge, or would it be a 
blanket referral?
    And, finally, you would have to look at issues of cost and 
delay, particularly given the geography of the Federal system.
    But you raise an interesting point, obviously. I, like you, 
I have practiced in both the Federal and the State system, and 
I think to some degree the fact that Federal judges are not 
elected in fact gives them both the ability and the cushion to 
perhaps do the right thing in an easier manner because they are 
not subject to an election.
    Mr. Quigley. I appreciate your remarks. Thank you.
    Mr. Johnson. Thank you, Mr. Quigley. We will adjourn this 
hearing but I would like to thank all of the witnesses for 
their testimony today.
    Without objection, Members will have 5 legislative days to 
submit any additional written questions which we will then 
forward to the witnesses and ask that you answer as promptly as 
you can to be made a part of this record.
    Without objection, the record will remain open for 5 
legislative days for the submission of any other additional 
materials.
    Again, I thank everyone for their time and patience today. 
This hearing of the Subcommittee on Courts and Competition 
Policy is adjourned.
    [Whereupon, at 3:22 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record






                                

 Prepared Statement of the Honorable Howard Coble, a Representative in 
    Congress from the State of North Carolina, and Ranking Member, 
             Subcommittee on Courts and Competition Policy
    Thank you, Mr. Chairman. I appreciate your calling this hearing on 
the important topic of judicial recusals.
    There has always been inherent tension among the three branches of 
our federal government. The Founders intended that no one branch would 
dominate the other two, and that each branch would guard its own 
constitutional territory from encroachment. This system of checks and 
balances has done a wondrous job of defending civil liberties, 
promoting national security, and expressing the popular will through a 
deliberative legislative process. The inevitable by-product of this 
construct is institutional tension, especially when one branch 
``checks'' the other. But it's natural; in fact, it's a sign of civic 
health.
    This hearing wasn't convened to create more tension than already 
exists. We're not here to poke a co-equal branch of government in the 
eye. All members of the Courts Subcommittee respect the work of the 
Judiciary even if we don't agree with their work product in every 
instance. And following the Founders' example, we appreciate the 
importance of judicial independence. Article III judges should be 
insulated from political pressure to render unbiased opinions--and 
that's why they enjoy life tenure.
    However, this doesn't mean that federal judges are entitled to a 
free pass in life. We have a constitutional obligation to conduct 
oversight on judicial operations, just as the Judiciary is charged with 
reviewing our statutory handiwork for legal defects. But short of 
impeachment, a congressional prerogative rarely exercised, there's 
little we can do to discipline judges for ethical lapses. Still, we 
need to work with the Judiciary to identify areas of concern if they 
exist and to develop corrective responses when appropriate.
    As a former Courts Subcommittee Chairman and a 25-year member of 
the full Judiciary Committee, I've participated in previous oversight 
efforts to review the state of judicial ethics and behavior. Much of 
this work culminated in a rewriting of the Judicial Conduct and 
Disability Act of 1980, the statutory mechanism by which individuals 
may file complaints against federal judges. While I'm sometimes plagued 
by senior moments, I do recall this project peripherally touched on the 
matter of recusals, with some arguing that the recusal statutes were 
dead law; in other words, judges weren't likely to recuse themselves 
from cases and lawyers were too frightened to ask them. And if memory 
further serves, part of this Subcommittee's impeachment investigation 
of District Judge Manny Real during the 109th Congress involved a 
recusal issue.
    No open-minded litigant believes he's entitled to win in federal 
court. But every litigant expects and deserves to be treated fairly. At 
minimum, this means the presiding judge must be free of bias or 
prejudice toward any litigant. If this isn't the case, the judge should 
step aside.
    We have a balanced panel of witnesses who can speak to this issue 
in great detail, so I'm eager to hear their views. I emphasize that I'm 
not out to ``get'' the Judiciary. I don't know if the complaints about 
the state of recusal jurisprudence are anecdotal or genuine. But that's 
why we're having this hearing, and I look forward to participating.
    Thank you, Mr. Chairman.
    Mr. Chairman, at this time I'd like to make a unanimous consent 
request that we enter into the record a statement and other information 
submitted by Michigan Supreme Court Justice Robert Young about his 
state?s experience with their recusal laws.






                                 
