The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Prof. Michael McConnell (Stanford): Amicus Wrong to Call for Judge Cannon's Removal
I'm delighted to pass along this item from my Stanford colleague Prof. Michael McConnell (who also served for several years on the Tenth Circuit):
The National Law Journal reports that retired district court judge Nancy Gertner, joined by ethics experts Stephen Gillers and James Sample, have filed an amicus brief in the Eleventh Circuit asking that the court reassign the Trump Classified Documents case to a judge other than Judge Aileen Cannon on remand (assuming that the court does not affirm dismissal of the case).
The only reason the brief gives for reassigning the case is that the writers think "[a] reasonable member of the public could conclude, as many have, that the dismissal was the culmination of Judge Cannon's many efforts to undermine and derail the prosecution of this case." The brief points to decisions by Judge Cannon that the writers think were overly sympathetic to Trump, such as her 2022 ruling (reversed by the Eleventh Circuit) appointing a special master to review the documents, as well as what the writers call a "pattern of delay." Obviously they also think Judge Cannon's dismissal of the case on the ground that the special prosecutor's appointment was constitutionally invalid was incorrect. The brief offers no evidence of biased statements, extrajudicial conduct, political contributions, or anything else that is ordinarily the basis for a charge of judicial bias.
This is an unsound and dangerous suggestion. It is hardly unusual for "reasonable members of the public to conclude" that judges' rulings are wrong, unfair, and biased. They often are right. Especially in politically charged cases, it is easy for one side to think the judge is biased; ask Trump supporters how they feel about Judges Marchan and Chutkan. But ethics complaints must be based on something more than disagreement with the legal merits of the judge's rulings. If not, judicial ethics complaints would become yet another weapon in our culture of lawfare. If appellate courts start to reassign cases whenever they suspect the rulings were the product of political bias, there will be no end of it. The job of appellate courts is to review rulings of law, not to pick and choose trial court judges.
My personal and professional view is that Judge Cannon's rulings have been within the legitimate range of disagreement, even if some of them may have been wrong. That makes this amicus brief especially unpersuasive. But even if I thought Judge Cannon's ruling were off the charts—which some judicial rulings are—it would not be a proper basis for removing a judge from the case.
On rare occasions, an appellate court will reassign a case, but this occurs only when the district judge has failed to comply with remand instructions in good faith (usually after multiple remands) or has openly expressed hostility to parties or lawyers. Judge Cannon has done nothing like this. Yes, she was reversed on the matter of the special master, but she complied with the terms of remand.
Ordinarily I would not write about an errant amicus brief, which are a dime a dozen. But the authors of this brief rightly command attention and respect. Nancy Gertner was an outstanding district judge, and I have joined with her on occasion to take positions regarding sentencing and other issues of criminal procedure. Gillers and Sample are among the nation's leading experts on legal ethics. I am surprised and disappointed that these distinguished individuals would file a brief suggesting that a district judge be removed from a case just because of disagreements with the merits of her rulings.
