Political Recusals

Reflecting again on judge who was removed from Tom DeLay's corruption trial, I found some interesting precedents that should shed some light on the matter.

In re Mason, 916 F.2d 384, 386 (7th Cir. 1990) (denying a writ of mandamus to disqualify a judge because he made pre-appointment contributions of $100 to each of the defendants). A judge's former political affiliation does not create an appearance of impartiality. See United States v. Alabama, 828 F.2d 1532, 1543 (11th Cir. 1987) (refusing to disqualify a judge, who had acted as plaintiffs' counsel in a civil rights suit in the past, from presiding over an action to desegregate Alabama universities). "The fact that a trial judge harbors political views, religious persuasion or values that are in direct opposition to those of the defendant does not, standing alone, constitute a basis for recusal." Welsh v. Commonwealth, 416 S.E.2d 451, 461 (Va. Ct. App. 1992)[Paul Butler, Should Radicals Be Judges?, 32 Hofstra L. Rev. 1203, 1205 n.7 (2004)]

The full article, by the way, is really interesting--I highly recommend it.

These precedents show two things to me. First, that the recusal of the Democratic judge from DeLay's trial probably was inconsistent with precedent. If contributing money to the defendants themselves doesn't violate judicial ethics, then clearly contributing to a political advocacy group prior to it having any dealings with the defendant can't be grounds for recusal. Second, that this issue is really, really, tough. That first case, Mason, seems almost ridiculously counter-intuitive to me. We're caught in a quandary here. On the one hand, nearly every judge is political--especially in the type of super-charged cases where the public at large actually cares. So to penalize the "overtly" political judges seems to be delusional, it just (as Butler argues in his article) encourages radical judges to go underground. On the other hand, if we are to preserve public notions of judicial integrity and honesty, then there has to be some level of entanglement that qualifies as a conflict of interest. The question is whether mere abstract political advocacy qualifies. And I'm just not sure.