Judicial Ethics and the Recall

Marquette University Law Professor Ed Fallone argues that the judges who signed the recall petition are well within their constitutional rights to do so and are under no obligation to recuse themselves based on the current statutes, the judicial code of conduct and controlling case law.  The best part? He uses conservative lawyer & blogger and fellow law Professor Rick Esenberg‘s own research to make his point. Professor Fallone knows his stuff:

Therefore, I conclude that the Code’s regulation of extra-judicial political activity should not extend to prohibit the signing of recall petitions.  Interpreting the recusal rules in ways that seek to police the expression of generalized ideology on the part of state court judges is a fool’s game.  We should not mandate the recusal of a judge unless their actions reveal a particular bias in relation to the actual parties, counsel or facts in the case before them.  In a separate context, Rick Esenberg has noted, “[h]aving a view on a legal or political issue is not the type of bias with which the state may concern itself.”  If You Speak Up, Must You Stand Down: Caperton and Its Limits, 45 Wake Forest L. Rev. 1287, 1327 (2010).  If this statement is true as a matter of general principle (and I believe that it is), then the belief that Scott Walker should be subject to a recall election has no relevance to the ability of a judge to be impartial in a case challenging the Voter ID law.

The full paragraph from the Esenberg paper reads:

One thing seems easy. The expression of a position on a legal issue—at least as long as it does not rise to the level of a “promise” or “pledge”—is not only constitutionally protected, but does not, given White, give rise to the type of bias that the state has an interest in preventing. Having a view on a legal or political issue is not the type of bias with which the state may concern itself.  The fact that a judge might feel pressure to rule in a way that is consistent with his earlier stated position or with public opinion does not give rise to due process concerns of sufficient gravity to justify the restriction of speech.

And yet on his own blog he writes that such behavior is suspect.

If a judge signs a recall petition and then sits on a a case challenging a key legislative accomplishment of the targetted [sic] politician in which the politician is a defendant, might a reasonable person question his capacity to act impartially? Is it reasonable to be concerned that the judge, who has publicly stated that he wants that politican [sic] out of office might be tempted – however subtly –  to help that process along by holding that the politician has promoted and signed into law an unconstitutional act?

While he ultimately concludes that the conduct does not rise to the level of recusal, he certainly leads his readers down the primrose path pointing out all the potential ethical violations of these judges.  He then leaves them with the question, “What do you think?”  I think you’re disingenuous in the extreme, Professor Esenberg, not to cite your own work in defense of free speech.