Can the impartiality of a judge be reasonably questioned if she asks questions during oral arguments, but does not decide the case? (Updated)

Judges Luck and Logoa (CA11) asked questions about a Florida law while they were serving on the Florida Supreme Court, but did not decide the case.

On Tuesday, I blogged about Judge Andrew Brasher's recusal from the Eleventh Circuit's en banc felon disenfranchisement case. Judge Brasher made that decision on his own accord. The plaintiffs in that case had previously sought his recusal; that motion became moot. The plaintiffs also seek the recusal of two other judges on the Eleventh Circuit: Judges Luck and Lagoa. You can find their motion here, and the State's response here.

I am going to simplify the facts a bit in order to cut to the core legal question. On November 6, 2019, the Florida Supreme Court heard oral arguments in a case that considered the constitutionality of Amendment 4. (The parties dispute whether that review was limited to the state constitution, or whether that review also involved the federal constitution). At the time, Luck and Lagoa served as Justices on the Florida Supreme Court. During the oral argument, both judges asked question that implicated the constitutionality of Amendment 4.  (The plaintiffs include some of the questions on pp. 12-15 of their brief). Two weeks later, Judges Luck and Lagoa were confirmed to the Eleventh Circuit. The Supreme Court issued its decision in the case on January 16, 2020. By that point, Luck and Lagoa were already off the court.

The parties dispute how closely related the Florida Supreme Court case is with the current appeal before the Eleventh Circuit. I will table that question for now. Rather, I will ask a more basic question: can the impartiality of Judges Luck and Lagoa be reasonably questioned because they asked questions, but did not decide the case?

The plaintiffs do not cite any cases that addresses this specific question. I can't imagine any authority exists. We are presented with such an unusual situation where a judge asks questions during oral argument, and two weeks later is confirmed to another court, where a related matter arises.

After some reflection, I think the State has the better argument. From pp. 3-4 of their brief:

Second, although Judges Luck and Lagoa participated in the oral argument over the advisory opinion, they were no longer members of the Florida Supreme Court by the time that court rendered its decision. Movants make much of questions Judges Luck and Lagoa asked during the argument, but every seasoned litigator has had the experience of being asked seemingly sympathetic questions at oral argument only later to be disappointed by the court's decision. Judges ask questions during oral argument for a variety of reasons, and such questions do not come remotely close to implicating the concerns that arise when judges sit in review of their own prior rulings.

It is a favorite pastime to read oral argument transcripts, and try to figure out how a judge will vote based on her questions. Alas, this sort of tea-leaf reading is seldom accurate. Judges will often ask questions as a devil's advocate. Perhaps the Judge wants to probe the weaknesses of a position he agrees with. Or perhaps the Judge is using the advocates to respond to a colleague's position. I don't think questions, by themselves, are enough to reasonably question a judge's impartiality.

There is another factor to consider. How did Luck and Lagoa vote at conference? I do not know how the Florida Supreme Court handles conferences. Do the Justices vote a few days after oral arguments? For argument's sake, I'll presume that there was a conference vote at some point after oral arguments, and before Luck and Lagoa were confirmed. Even then, I'm not troubled. A Judge's vote at conference is not final. (Just this past term, I suspect several votes flipped after conference. And let's not forget NFIB v. Sebelius.) A Judge reserves the right to change her vote at any time before the opinion is issued. With good reason. We view judges as impartial, and always open to changing their mind. The conference vote doesn't count.

The Supreme Court recently addressed this precise issue in Yovino v. Rizo (2019). The Ninth Circuit had a bizarre practice: the en banc court would count the vote of a judge who cast a vote at conference, but died before the final opinion was issued. As a result, Judge Stephen Reinhardt was able to decide a case from beyond the grave. The Supreme Court can't catch them all, but they caught this one. The per curiam order explained:

As for judicial practice, we are not aware of any rule or decision of the Ninth Circuit that renders judges' votes and opinions immutable at some point in time prior to their public release. And it is generally understood that a judge may change his or her position up to the very moment when a decision is released.

Judges are allowed to change their views. And that malleability is a good thing. I would be troubled if judges walked into arguments with a set predisposition, that could not be disturbed.

Yovino demonstrates that a Judge's questions during oral arguments, and even a conference vote, are not "immutable." Judges are allowed to keep an open mind till late in the game. These preliminary matters are not enough to question a judge's impartiality. The only decision that counts is the final order. Judges Luck and Lagoa did not participate in the Florida Supreme Court's published decision. Therefore, they are not disqualified.

Update: There are two relevant provisions of the Code of Conduct for United States Judges.

First Canon 3(C)(1)(e) provides that a "judge must disqualify himself or herself … in a proceeding in which the judge's impartiality might reasonably be questioned … in which … the judge has served in governmental employment and in that capacity participated as a judge (in a previous judicial position) … or has expressed an opinion concerning the merits of the particular case in controversy." This rule is very specific. If a judge has already "participated" or "expressed an opinion" in that "particular case in controversy" then recusal is required.

Generally, this specific rule is fairly easy to apply. For example, Justice Sotomayor recused herself from AEP v. Connecticut (2011). She had heard this "particular case in controversy" as a judge on the Second Circuit, even though she did not render a decision in the case. Cannon 3(C)(1)(e) provides a very specific ground in which a "judge's impartiality might reasonably be questioned." There is no balancing. It is a bright-line rule. My post deliberately avoided the question of whether the Eleventh Circuit case is the "particular case in controversy" that was considered by the Florida Supreme Court. This question is very fact bound, and the parties dispute it.

Rather, my post considered the far more general catchall provision. Canon 3(C) provides:

A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned…

Even if a judge's conduct does not fall within the ambit of 3(C)(1)(e), it still may warrant recusal if a "judge's impartiality might reasonably be questioned." I do not think that Judges Luck and Lagoa impartiality is in doubt because of their questions during oral arguments.

Here, another example from the Supreme Court is relevant. In PHH v. CFPB, then-Circuit Judge Kavanaugh ruled that the CFPB was unconstitutional, but the "for cause" provision could be severed. Judge Kavanaugh, after his confirmation, would have been disqualified from PHH. Unsurprisingly, the Supreme Court took another CFPB case in which all nine members could sit. Justice Kavanaugh voted in Seila Law v. CFPB in the same fashion he did in PHH. There were no surprises. I am not aware of any calls that Justice Kavanaugh had to recuse. (I know the Justices are not bound by the Code of Ethics, but the principles are generally followed).

Judges Luck and Lagoa did far less than Judge Kavanaugh did. They merely asked questions during oral arguments. They didn't issue a reasoned opinion. Luck and Lagoa's questions, by themselves, are not enough to trigger the general prohibition of Canon 3(C). I reserve judgment on whether the specific factual predicates of 3(C)(1)(e) are satisfied.

Update 2: I am happy to post a reply from Gabe Roth of Fix the Court.

I think we can agree that the question of whether Eleventh Circuit Judges Lagoa and Luck should recuse from the Florida voting case lies outside the prophylactic criteria in the Code of Conduct and speaks to the hazier "appearance of impropriety" standard.

Here's how I look at it: imagine you're working as an assistant district attorney and you're trying an alleged criminal, who's then convicted. Years later, the criminal appeals his crime and maybe some others he's committed, and you're now a sitting appellate judge. As an ADA, you didn't necessarily draw any conclusions on the guilt of the man you were trying; you simply did your job, as directed by the district attorney. But legal ethicists would rightly feel uncomfortable if you, now a judge, didn't step aside from the panel deciding the appeal.

Back to Florida. Did Lagoa and Luck hear oral argument in the voting case? Yes. Did they vote in conference? Likely. Did they work on the per curiam opinion? Possibly. Did they "participate," under the plain meaning of the word "participate," as described in the Canon 3(C)(1)(e) of the Code? Absolutely. So only one outcome "maintains [the] high standards of conduct" espoused in Canon 1: recusal.

As to whether U.S. senators may question a judge's propriety outside of the consideration of an impeachment inquiry, they can; 28 U.S.C. §351(a) gives them an avenue: "Any person" – including a senator – "alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts" may file with an appeals court "a written complaint containing a brief statement of the facts constituting such conduct."

Frankly, I'm surprised the Sen. Feinstein-led letters have not been submitted as formal complaints, and I see how this attempt to try the issue in the court of public opinion may rub some the wrong way. By the same token, they could have put a hold on the judiciary's FY21 budget until they received an answer, and they haven't done that (yet). In any event, I hope the Democrats correct this oversight and go the statutory route.

Finally, this episode suggests that greater transparency in judicial recusals is needed. Currently, federal judges (though not justices) enter their "conflicts" – e.g., stocks, family members, previous jobs – into judiciary-mandated software. If a court's random case assignment bot assigns the judge to case in which she has a conflict, the computer will skip her and move to the next judge in the queue. But this process happens completely in the dark; judges don't know when they're skipped, and neither does the public.

Shining a light on conflict lists and recusal software won't help us solve the current question. But thinking creatively about how to improve a less-than-ideal process on conflicts may lead us to solutions that yield greater confidence in the impartiality of the judiciary, which is something all of us are seeking.