It is becoming increasingly common for politicians and activist groups to call for judges to recuse from high-profile cases on the flimsiest of grounds. One example was the laughable effort by Senator Elizabeth Warren to get Judge Don Willett of the U.S. Court of Appeals for the Fifth Circuit to recuse from a case involving limits on credit card fees because one of his children's savings account invested a minimal amount in a bank that was not a party to the case. The U.S. Judicial Conference Committee on Codes of Conduct determined (correctly) that Judge Willett's investment was too "indirect and contingent" to require recusal in the case, but this was not enough for Senator Warren.
Attorney Ted Olson decries the "alarming increase in baseless judicial-ethics attacks" and recusal demands by non-parties in a recent Wall Street Journal op-ed. After recounting the tale above, he writes:
Interest groups have demanded that judges and justices recuse themselves based on similarly attenuated investment connections. The latest came when outside groups wrote to a federal district judge demanding that he recuse himself from considering the lawfulness of the Federal Trade Commission's new regulation banning noncompete clauses in employment contracts. The judge holds stock in several publicly traded companies that aren't parties to the litigation but have used noncompete clauses in their employment contracts.
Recusal tactics have become more outrageous. Normally, only parties directly involved in the litigation can file a motion to recuse a judge for an alleged conflict of interest. But we now see coordinated campaigns to pressure recusals. Left-wing interest groups are submitting demands for recusal, coupled with press releases and press conferences. This practice should stop. There is no formal mechanism for outsiders to file such recusal demands, and for good reason. They clog courts with additional briefings and hearings, causing delays and distorting outcomes. Courts should refuse to entertain these ill-intended requests, and the lawyers and litigants responsible should be subjected to sanctions. . . .
