Nathan Lewin was called in to argue the case before the United States Court of Appeals for the Eighth Circuit. Prior to the appeal, the lawyers had received notice of who the judges would be for the next two weeks on the Court of Appeals. It’s customary for Courts of Appeals to occasionally invite district judges to sit as visiting jurists for a day, enabling the judges of the appeals courts to become acquainted with district judges and their abilities. It also gives district judges an opportunity to see in-person how the appeals process works. A district judge who sits with an appellate judge has the same authority as the judge whose place he or she is temporarily filling. The district judge can vote and write opinions.
The benefits of this system seem simple enough, but something happened in that particular court on that day that would make any objective-minded person cry foul. The Eighth Circuit invited Judge Reade to sit with two of the three judges – on the preceding as well as the very day that the case concerning Judge Reade’s qualification and fairness would be heard! It is almost too incredible to imagine, but right up to the Rubashkin appeal at 2 p.m., Judge Reade sat with two of the three judges!
Could this be a coincidence? Could John Wilkes Booth have been aiming for a different victim? Does it not make sense that this invitation was engineered to enable these two judges to get to know Reade, and take her at her word that she had done nothing improper by being involved in the Rubashkin case prior to the raid, and that her prior involvement had in no way biased her against the defendant whose apprehension she had orchestrated?
But what was the Rubashkin defense team to do? If they were to challenge the suspiciousness of this invitation by requesting that the two judges be disqualified, that would be a discomforting challenge to the judges’ integrity (read: insult). If the Court of Appeals would subsequently affirm the conviction, the lawyers would be blamed for having gratuitously insulted and alienated the judges. Furthermore, the defense team believed that their appeal was so strong that they did not have to be overly concerned about this indelicate quagmire. After deliberation, the legal team decided not to file a motion, instead trusting – uneasily and (ultimately) naively – the Court.
The appeal argued that Reade and the prosecutors had had an obligation to tell Rubashkin’s lawyers about the judge’s involvement in planning the immigration raid. Except in very limited circumstances, judges aren’t allowed to meet with one side in a case without the other, and so those weekly meetings had violated the rules. Several friend-of-the-court amicus briefs had been written in support of Rubashkin’s position, filed by the ACLU and other similar organizations, and signed by 86 former federal judges and other Justice Department officials.
Reade and the government claimed that she had attended all those meetings simply to save her court a headache; her support for the raid only concerned logistics. But as Emily Bazelon noted in Slate magazine, judges aren’t just supposed to be impartial, they’re supposed to make sure they don’t create the appearance of bias.
It is elementary that judges who meet regularly with prosecutors regarding a mountain of indictments should not preside over those very same cases. Bazelon noted, “Rubashkin’s prosecution was the culmination of the raid, in a sense. Getting him was the best way to justify the spectacle of the processing of the sad sack Guatemalans on the cattle fairground…. We know from Reade’s comments to the New York Times that she felt she had to defend.” There is doubt that Judge Reade was on the defensive since the raid and the court case were widely condemned.
There is an elaborate legal system that enables judges to police the implementation of the law, but hardly as many safeguards regarding the scrutiny of the judges. And thus, even though the oddities of this case don’t sit well, there is not much that can be done to force the recusal of an obstinate federal judge.
Nathan Lewin argued the appeal before the Eighth Circuit. For every issue that the Chief Judge raised, not only did Lewin have an answer, but he was able to cite an opinion that the Chief Judge had personally written which corroborated the issue on appeal. This might have been Lewin’s finest hour, and despite the football phenomenon of “Any Given Sunday,” he walked out of court confident that Shalom Rubashkin would soon see the light of day. But for some reason already intimated, the Appeals Court affirmed the decision of the District Court.
(To be continued)
Chodesh Tov – Have a pleasant month!