Although not strictly a mass tort issue, a number of our readers have followed with great interest the judicial recusal issues raised by Caperton v. A.T. Massey.

Last week, the House Judiciary Committee’s Subcommittee on Courts and Competition Policy held a hearing “Examining the State of Judicial Recusals after Caperton v. A.T. Massey.”

Several legal experts debated a proposal to amend federal law to give litigants a peremptory judicial challenge. The Hon. Margaret McKeown of the 9th Circuit, who also chairs the Committee on Codes of Conduct for the U.S. Judicial Conference, suggested that there are already a number of protections in place to make sure judges are impartial.  She cited 28 U.S.C. §§144 and 455(a), as well as  judicial ethics rules. Dean Gehy of the Indiana Law School, however, opined that there are several problems with the current federal disqualification regime. He suggested amending Section 144 to provide a peremptory challenge instead of requiring an affidavit claiming personal bias, and revising Section 455 to require a different judge to hear contested disqualification motions.

Richard Flamm, author of a nationwide treatise on Judicial Disqualification: Recusal and Disqualification of Judges, described the existing federal disqualification framework as “deeply flawed” and fraught with serious pitfalls both for litigants and unwary counsel.  He gave the committee a history lesson, tracing judicial ethics to the Babylonian Talmud, and to the Roman Code of Justinian. He cited to state analogs, concluding that in states that have enacted peremptory challenge statutes, the right to challenge a judge on a peremptory basis is widely considered to be a useful and valuable one, and one that assuages the concerns of a great number of litigants and attorneys.

On the other hand, Professor Eugene Volokh, of UCLA, who also worked on the Massey case, raised the danger of strategic judge-shopping, and urged Congress to tread cautiously and not act unless there appears be a serious problem.

Professor Hellman, from the University of Pittsburgh, suggested two measures that he thought would enhance transparency and help judges to avoid even the appearance of impropriety. First, judges should be encouraged to post “conflict lists,” including financial holdings, on their courts’
websites. Second, litigants should be given one opportunity to secure reassignment of a civil case to another judge, the so-called right of “peremptory challenge.”