A Federal Judge Responds Defiantly to Chief Justice Roberts

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There is a growing gulf between the Supreme Court justices and the rank-and-file federal judges who decide the merits of tens of thousands of cases each year.

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On Sunday, I wrote this piece criticizing United States Supreme Court Chief Justice John Roberts for his mealy-mouthed annual report on the judiciary. The chief justice copped out, I believe, by failing to even mention the fact that lower-court federal judges all over the country are sorely understaffed (because of Republican intransigence in the Senate) and under unwarranted, and sometimes just plain crazy, political attack from conservative politicians.

I also found it odd, though I didn't mention it Sunday, that the chief justice did not mention the late John M. Roll, the Chief District Judge of Arizona, who was shot and killed in Tucson last January -- literally in the line of duty -- in the attack on Rep. Gabrielle Giffords. Judge Roll was in line to talk to Rep. Giffords at the supermarket that day to discuss the "judicial emergency" in Arizona caused by too few federal judges trying to handle too many cases.

Instead, the Chief Justice devoted almost his entire 16-page message to defending the Court's recusal practices, which are not nearly as codified or transparent as they ought to be. I didn't analyze the merits of the chief justice's recusal argument because I think it's a dead-end issue. The justices are going to continue to play by their own recusal rules for the same reason they will continue to preclude cameras in their courtroom -- because they can.

But the recusal issue remains a live one. And on that point it is not just civilians (on the right and the left) who found the chief justice's remarks underwhelming. On Tuesday, I received this response to my piece from a veteran federal judge:

I received two hate calls last week for two separate sentences I imposed in which I adhered strictly to Supreme Court precedent. No complaints. That's my job. But when the chief justice says, "A justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy," he is gratuitously insulting all judges and justices who adhere to the law. The duty to sit is just as obligatory as the duty to recuse when the facts require or justify recusal. I don't suggest that some judges may withdraw "as a matter of convenience or simply to avoid controversy," but if they do, they are beneath contempt.

Moreover, Supreme Court justices have withdrawn when such was justified by health concerns or other legitimate reasons (and some just to travel) and the case reports demonstrate a number of Supreme Court decisions in which fewer than all nine participated. How many did Justice Kagan withdraw from during her first year in office because she had been in the Justice Department? True, the Supreme Court sits en banc, but it only takes five of them to do so.

For "convenience or simply to avoid controversy," I have about 35 class actions, a death penalty habeas corpus case requiring my personal examination of over 10,000 pages of transcripts, briefs and opinions -- to say nothing of the idiotic Fair Debt Collection Practices Act cases plaguing my docket that have all the sophistication of traffic violations -- it would be a relief to withdraw from, if I had not taken an oath. I think it's the same oath the chief justice took.

There is always an inherent gulf between the justices, who hear a tiny fraction of all cases that come before them, and the rank-and-file federal judges who decide the merits of tens of thousands of cases each year. But that gulf is wider today in the wake of the chief justice's remarks. Amid the clamor over judicial independence, and with scores of judicial nominations left pending to the detriment of litigants everywhere, John Roberts decided that now was the time to devote virtually his entire annual message to an explanation of why the Supreme Court is different from the rest of the federal judiciary when it comes to recusal matters.

That's not leadership. That's trying to cover your butt. No wonder some federal judges are angry during these days of overloaded dockets and threats of judicial subpoenas. I would be, too, if the chief justice who was supposed to be speaking for me was instead reminding me how different the Supreme Court is from the rest of the judiciary.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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