ConfirmThem

By AndrewHyman Posted in Circuit Courts — Comments () / Email this page » / Leave a comment »

Senators Frist and Specter yesterday forwarded to other Senators their correspondence with Judge Boyle regarding recusal errors. Frist and Specter say that Judge Boyle's letter explains and refutes the allegations, "and puts them into context." However, due to his position as a nominee, I don't think that Judge Boyle was able to fully put the allegations into context, and so I'll do the honors, without repeating any of the contextual points that Judge Boyle made.

First of all, here is what the U.S. Supreme Court has said on this subject, in LILJEBERG v. HEALTH SERVICES ACQUISITION CORP., 486 U.S. 847 (1988):

A conclusion that a statutory violation occurred does not, however, end our inquiry. As in other areas of the law, there is surely room for harmless error committed by busy judges who inadvertently overlook a disqualifying circumstance. There need not be a draconian remedy for every violation of 455(a). It would be equally wrong, however, to adopt an absolute prohibition against any relief in cases involving forgetful judges.

Harmless, inadvertent errors by imperfect judges should not require draconian treatment.

Secondly, it's important to keep in mind that even the best people have made recusal errors. Such errors have been made by people like circuit judges Kozinski, Batchelder, Manion, Becker, Arnold, Lynch, Selya, and Silberman. Also, people like Supreme Court Justice Ruth Bader Ginsburg. Also, people like circuit judges Clay, Daughtrey, Dennis, and Coffey. This is not to excuse such errors, but merely to point out that judges are human.

Thirdly, it's worth recognizing that ANY violation of law is at least technically a violation of judicial ethics. After all, the canons of judicial conduct say that, "A judge should respect and comply with the law." So, putting insufficient stamps on an envelope, jaywalking, and getting a parking ticket are all violations of judicial ethics. That is not to trivialize recusal errors, but rather to point out that some violations of judicial ethics are bigger than others.

Fourthly, it's pertinent to point out the source of these allegations. A reporter named Will Evans of an organization called the Center for Investigative Reporting (CIR) is the source. It may be coincidence that the allegations by Mr. Evans lacked any context whatsoever. But consider this report about the connection between George Soros and Mr. Evans's organization:

Except for some payments to two columnists, Abramoff tried to influence politicians. Soros has a far more impressive record of influencing the press. Soros has put some of his massive fortune into press groups like Investigative Reporters & Editors (IRE), the Fund for Investigative Journalism, and Center for Investigative Reporting.

In other words, journalists can have conflicts of interest too, and big ones at that.

Hat Tip: Bashman.

UPDATE: Speaking of context, it's worth mentioning also that the notoriously liberal American Bar Association took a look at these recusal allegations, and decided to still rate Judge Boyle as "qualified."