Recusal on appeal: an appellate advocate's perspective.

• Author: Bashman, Howard J.

1. INTRODUCTION

   My clients all share an overriding concern--to win on appeal. Only rarely in my fifteen years of appellate practice, however, has a client expressed concern over whether grounds exist to disqualify a judge assigned to hear and decide the case on appeal. I have concluded from this evidence that clients typically believe that appellate judges will hear cases in a fair and impartial manner, and I suppose that clients might even welcome the participation of appellate judges perceived as, for lack of a better term, biased in favor of their position on appeal. But, for understandable reasons, a client would be quite concerned about having an appeal heard and decided by a judge perceived as biased against the client's position.

   Assuming that my clients are in these respects similar to those of other appellate lawyers, I will address in this article the considerations likely to affect a decision about whether to seek the recusal of a judge assigned to hear an appeal. First, however, I survey the field in order to place those considerations in the appropriate context.

2. REPRESENTATIVE COURT RULES AND PROCEDURES

   To discuss recusal from the perspective of an appellate practitioner, it is first necessary to understand the differing procedures that appellate courts employ in deciding which judges will hear and decide which appeals. And an appellate court's procedures concerning when the identities of the judges who will hear and decide an appeal are disclosed to the parties can also be of importance in a particular case. Only after understanding how appellate judges go about determining whether recusal is appropriate and determining the point during the appellate process when the identities of the judges assigned to hear and decide an appeal are disclosed to the parties can one usefully consider the recusal-related options and strategies available to an appellate practitioner.

   The appellate court whose procedures I know best is the United States Court of Appeals for the Third Circuit. (1) That is the appellate court in which I represent clients most frequently, and before entering into private practice, I served a two-year clerkship for a Third Circuit Judge. I know from this experience that Third Circuit judges are expected to furnish the Clerk's Office with a list of parties, attorneys, and law firms on whose cases they will be recused from participating. Thus, if the judge's spouse or child is an attorney, the judge will likely include the law firm at which the spouse or child works as one in whose cases the judge will refrain from participating. Similarly, if the judge owns stock in a given company, the judge will include it on his recusal list.

   The Third Circuit, like all the other federal Courts of Appeals, decides the vast majority of appeals using three-judge panels. The Third Circuit is authorized to have fourteen active judges, (2) and also calls on its senior circuit judges, along with visiting circuit and district judges from other courts, for assistance in hearing and deciding appeals. Drawing on this group of available judges, the Clerk's Office, in coordination with the court's chief judge, compiles an oral-argument calendar that lists which panels will hear cases during which weeks of the year, along with the cities where the panels are scheduled to convene. The lists are randomly generated, although they are subject to change both to ensure that all active judges have the opportunity to sit on panels with one another and to accommodate the judges' anticipated unavailability for oral argument due to other work-related or personal obligations.

   Once the oral-argument calendar is established, the Clerk's Office begins tentatively assigning appeals to the next available panel in the order in which cases become fully briefed and ready for disposition. Before a case is tentatively assigned to a panel, however, the Clerk's Office will compare the parties, their lawyers, and their law firms against the judges' recusal lists. If any judge on the initial panel is recused, the case will be assigned instead to a different three-judge panel.

   After the Clerk's Office conducts this initial recusal screening, it submits to each judge on the panel a list of the parties, counsel, and law firms whose cases have been tentatively assigned to the panel. This procedure enables the judges on the panel themselves to determine at an early stage of the proceeding whether they should recuse themselves from hearing and deciding any of the cases tentatively assigned to the panel. If any judge sees the need to recuse from a particular case, that case will be assigned to another three-judge panel and will be replaced by another case, which will then be reviewed for recusal purposes.

   Once this two-step screening process concludes, the judges on a given three-judge panel will receive the briefs and appendices in the cases assigned to it. Before oral argument occurs, the judges will review those briefs in detail, and that detailed review may reveal a need to recuse that was not apparent from earlier information. If a judge recuses after a case has been assigned to a panel but before oral argument occurs, a replacement judge will typically be assigned to hear that case. This replacement judge is usually not randomly selected; rather, if a judge has his resident chambers where the oral argument is scheduled to occur and is otherwise available, he may be asked to participate in the case either by the recused judge or by the chief judge.

   In the Third Circuit, the names of the judges assigned to decide a case are revealed to counsel approximately two weeks in advance of the date scheduled for oral argument or, if a case is to be submitted on briefs without oral argument, about two weeks before the submission date. Thus, the parties and their attorneys have a relatively brief time in which to decide whether to seek the recusal of any of the judges assigned to hear and decide the case.

   Some other state and federal intermediate appellate courts provide even less advance notice. In certain intermediate appellate courts, the lawyers will not learn the identities of the judges assigned to hear oral argument until they arrive in court on the day of oral argument. And some federal appellate courts employ an oral-argument screening process whereby, if a case is decided on the briefs alone without oral argument, the first notice that the parties and their attorneys receive of the judges assigned to decide the case will be when the appellate court issues a copy of its written ruling in the appeal.

   Of course, in appeals that will be decided by a three-judge panel of an intermediate appellate court, parties and their lawyers will know which active and senior judges serve on that court, and thus have a chance of being selected to hear and decide the appeal. And some appellate courts, most commonly appellate courts of last resort, hear and decide most every appeal using all judges in active service. Thus, for example, when a case arrives on review to the Supreme Court of the United States or the Supreme Court of Pennsylvania, the lawyers and the parties know the identities of the Justices who will be deciding both whether to review the case on the merits and, if review is granted, what the outcome will be.

3. THE APPLICABLE FEDERAL STATUTE

   In the federal court system, a federal statute governs judicial recusal. (3) The statute describes two categories for disqualification, the first being that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." (4) The parties to a case are allowed, following full disclosure of the basis for disqualification, to waive a judge's recusal if the ground for disqualification arises only under this provision. (5)

   The second situation in which recusal is necessary arises if a judge (1) has actual bias or prejudice concerning a party; (2) has a direct financial interest, however small, in a party; (3) has served as lawyer in the matter in controversy while in private or governmental practice; or (4) has a spouse...