December 7, 2023

Former judges take on one of their own in recusal case at [US] High Court

Judith S. Kaye - former chief Judge, NYS Court of Appeals and Of Counsel at Skadden Arps. 082713

Judith S. Kaye – former chief Judge, NYS Court of Appeals and Of Counsel at Skadden Arps.

By Tony Mauro, From The National Law Journal

One biased judge can taint the deliberations of an entire appellate court, a group of former judges is telling the U.S. Supreme Court.

The former judges who filed a brief in Williams v. Pennsylvania, set for argument on Feb. 29, include Judith Kaye, the former chief judge of the New York Court of Appeals, who died in January, a month after she signed on. Former Texas Chief Justice Wallace Jefferson also joined the brief, as did onetime federal appeals judges Timothy Lewis, Michael McConnell, Kenneth Starr, Deanell Tacha and William Webster.

The Williams case could set new standards for judicial recusals nationwide. Convicted murderer Terrance Williams is challenging his death sentence because the district attorney whose office prosecuted his case, Ronald Castille, was chief justice of the Pennsylvania Supreme Court when it upheld his sentence.

“Judges serving in multimember tribunals work together closely and are highly influenced by the opinions of their fellow jurists,” the brief states. “Permitting the presence of bias in such a collaborative process not only undermines the proceeding in question, but the public’s confidence in the judicial system.”

Pennsylvania argues that then-Chief Justice Castille’s role in the prosecution 29 years ago was administrative, and the decision Williams is challenging was reached by a unanimous 6-0 vote.

Williams’ argument, Pennsylvania’s lawyers contend, “is the social science equivalent of a platitude: one bad apple spoils the bunch. But judges are not apples. The law presumes that judges will carry out their duty to maintain impartiality, even in the face of potentially prejudicial information.”

Virginia Sloan, president of the nonpartisan Constitution Project, recruited the former judges for the brief. “It was amazing how easy it was” to find judges who made the central point of the brief, she said. “It’s a collegial experience and one judge can have influence over the whole court, especially if it is the chief justice.”

Sidley Austin partner Jeffrey Green, counsel of record on the brief, said the “distinguished former judges” behind the brief were also adamant that the unanimity of the Pennsylvania Supreme Court’s ruling did not make Castille’s tainted vote irrelevant.

“Appellate judges do not operate in silos, and the effect of a biased judge’s participation cannot be reduced to a ‘no harm, no foul’ determination based on vote distribution,” Green wrote.

To read the brief by the former appellate judges go to originating website link below

IMAGE:  Judith Kaye. Photo: Rick Kopstein/ALM

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