May It Please The Court

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May It Please The Court
by Leonard Rivkin
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How Not To Disqualify Your Favorite Federal Judge

A recent Los Angeles Daily Journal (the local lawyer's rag) newspaper featured an article about hiring a hitman as an alternative to recusing a federal judge. The article requires a paid subscription, so you'll just have to trust me on this one. The author opined that the federal judiciary needs a better system to recuse judges.

Here's the short version. Federal judge dismisses a corporate case, believing the CEO perjured himself. Federal judge follows up with prosecutors, and writes a letter seeking to have the CEO charged. Prosecutors oblige, but file the case against the CEO in a different court. Federal judge orders the case transferred to his court. CEO seeks to have the dismissing / charging / transferring federal judge recuse himself. Federal judge not only refuses to recuse himself, but also revokes bail, throwing the CEO in jail. CEO, while in jail, is caught on tape by the FBI while attempting to hire a hitman to recuse the judge permanently.

Why should it have to come down to hiring a hitman to get rid of a judge?

In state court, we have a lovely little mechanism called a Peremptory challenge. It can only be used once per side, which really causes a quandary whether to use the challenge mechanism.

That way, it's not up to the judge to determine whether to back out of a case. It's up to the parties. Look at the mess with Scalia and Cheney. Does it really take 10 pages to explain why you're not prejudiced in favor of one party? Like the Daily Journal article said, if it takes 10 pages to explain that, you've missed the point.

The federal system has no similar mechanism that allows the parties to disqualify a judge.

Maybe it's about time we considered putting one into place that doesn't involve a hitman.

Posted by J. Craig Williams on Tuesday, November 09, 2004 at 13:08 Comments (0)


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