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.
