Arkansas State Conference NAACP v. Arkansas Board of Apportionment

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

ARKANSAS STATE

CONFERENCE NAACP et al. PLAINTIFFS

v. Case No.: 4:21-cv-01239-LPR

THE ARKANSAS BOARD OF

APPORTIONMENT et al. DEFENDANTS

ORDER

This is a Section 2 Voting Rights Act case. The Plaintiffs are the Arkansas State

Conference NAACP and the Arkansas Public Policy Panel.1 The Defendants are the Arkansas

Board of Apportionment, the Board’s three members, and the State of Arkansas. The Board’s

three members—who are sued in their official capacities only—are Governor Asa Hutchinson,

Attorney General Leslie Rutledge, and Secretary of State John Thurston. The sole claim alleged

in the Complaint is that the 2021 reapportionment plan for the Arkansas House of Representatives,

which was approved by the Board of Apportionment, “dilutes Black voting strength in violation

of Section 2 of the Voting Rights Act . . . .”2

Section 2 of the Voting Rights Act provides that “[n]o voting qualification or prerequisite

to voting or standard, practice, or procedure shall be imposed or applied by any State or political

1 See Compl. (Doc. 1) at 0–2. The Complaint contains a page numbering error insofar as the second page of the

Complaint is labeled 1, the third page of the Complaint is labeled 2, and so on. For consistency’s sake, I refer to the

Complaint’s page numbers as they appear on the Complaint itself. Accordingly, I will refer to the first page of the

Complaint (which is not numbered) as page 0.

2 Id. at 9. When I use the term “reapportionment plan,” I am referring to the redistricting for the Arkansas House of

Representatives that has occurred as a result of the 2020 Census.

subdivision in a manner which results in a denial or abridgment of the right to vote on account of

race or color . . . .”3 Section 2 further clarifies this prohibition as follows:

A violation . . . is established if, based on the totality of circumstances, it is shown

that the political processes leading to nomination or election in the State or political

subdivision are not equally open to participation by members of a [protected] class

of citizens . . . in that its members have less opportunity than other members of the

electorate to participate in the political process and to elect representatives of their

choice.4

The Supreme Court has long held that the scope of Section 2’s prohibition encompasses the alleged

dilution of African-American votes.5

Plaintiffs do not allege or argue that anyone, including the three members of the Board of

Apportionment, had the purpose, intent, or motivation to discriminate against Arkansans of color.6

That is not surprising. Since Thornburg v. Gingles, the Supreme Court has made clear that the

language of Section 2 focuses on the results of a reapportionment plan, not the motivation behind

the plan.7 As Plaintiffs’ Motion for a Preliminary Injunction emphasizes, “[i]n 1982, ‘Congress

3 52 U.S.C. § 10301(a).

4 Id. § 10301(b).

5 See, e.g., Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2332–33 & 2333 n.5 (2021) (collecting cases).

Over the years, several justices have concluded that the text of the Voting Rights Act is not broad enough to reach

vote dilution cases. See, e.g., Holder v. Hall, 512 U.S. 874, 914 (1994) (“Properly understood, the terms ‘standard,

practice or procedure in [Section 2 of the Voting Rights Act] refer only to practices that affect minority citizens’ access

to the ballot. Districting systems and electoral mechanisms that may affect the ‘weight’ given to a ballot duly cast

and counted are simply beyond the purview of the Act.”) (Thomas, J., concurring in judgment); cf. Allen v. State Bd.

of Elections, 393 U.S. 544, 588 (1969) (suggesting that similar text in Section 5 of the Voting Rights Act did not reach

vote dilution) (Harlan, J., concurring in part and dissenting in part). Whatever I may think of the decades-long debate

between the Justices, my obligation as a district court judge is to apply the Voting Rights Act as it has been

authoritatively interpreted by Supreme Court precedent.

6 See generally Compl. (Doc. 1); Br. in Supp. of Pls.’ Mot. for Prelim. Inj. (Doc. 3). In their Motion for Recusal—

which is the ultimate subject of this Order—Plaintiffs passingly (and without further elaboration) refer to this case as

“a claim of racial discrimination leveled against the state’s highest elected officials . . . .” Br. in Supp. of Pls.’ Mot.

for Recusal (Doc. 28) at 4. Given the lack of any allegation in the Complaint (or argument in the Preliminary

Injunction papers) that one or more Defendants engaged in purposeful discrimination or had a discriminatory motive,

the Plaintiffs’ point appears to be nothing more than the obvious fact that this case asks whether the reapportionment

plan violates Section 2 of the Voting Rights Act.

7 See 478 U.S. 30, 35 (1986); see also, e.g., Voinovich v. Quilter, 507 U.S. 146, 155 (1993) (“Only if the apportionment

scheme has the effect of denying a protected class the equal opportunity to elect its candidate of choice does it violate

[Section 2]; where such an effect has not been demonstrated, [Section 2] simply does not speak to the matter.”).

substantially revised [Section] 2 to make clear that a violation could be proved by showing

discriminatory effect alone and to establish as the relevant legal standard the results test.’”8 The

primary question is whether the plan “results in a denial or abridgment of the right to vote on

account of race or color”9—regardless of the motivation any of the Defendants. Plaintiffs focus

exclusively on this “results test” question. The nub of their argument is as follows:

The challenged plan contains just eleven majority-Black House districts even

though more than sixteen percent of the state’s population is Black[,] and it would

be possible to draw sixteen (out of 100) geographically compact, majority-Black

House districts. As a result, the challenged plan impermissibly dilutes Black voting

strength in violation of Section 2.10

Defendants have not yet had a chance to respond to Plaintiffs’ allegations, so any

discussion or analysis of the potential merit of the claim would be inappropriate at this time. The

Court recounts the allegations above solely to provide some background and context for its

resolution of the pending Motion for Recusal filed by Plaintiffs.11

Legal Standards Governing the Motion for Recusal

Motions for recusal are serious business. They are rarely filed. And I well recall from

private practice the care and thought that attorneys give to such matters. Accordingly, when such

a motion is filed, a judge must undertake the deepest of reflection on the issues presented. I have

done so here, thinking of and working on little else in the days since this motion was filed.

The question of recusal implicates two critically important judicial obligations. The first

obligation is impartiality. This includes more than the avoidance of hearing cases in which a judge

is actually partial to one side or the other. Just as important is the avoidance of hearing cases in

8 Br. in Supp. of Pls.’ Mot. for Prelim. Inj. (Doc. 3) at 8 (quoting Gingles, 478 U.S. at 35–36).

9 52 U.S.C. § 10301(a).

10 Br. in Supp. of Pls.’ Mot. for Prelim. Inj. (Doc. 3) at 1.

11 Pls.’ Mot. for Recusal (Doc. 27).

which a judge appears to the public to be partial. As our founding generation well understood, the

judiciary’s ability to operate as a co-equal branch of government—and to protect individual rights

against intrusion from the other branches—is dependent upon the public’s confidence in our

decisions being based on law instead of personal avarice, bias, or policy preferences.12 Such

confidence would soon evaporate if judges sat on cases where, although in reality they could be

impartial, the public thought otherwise.

The second obligation implicated by a recusal question is the obligation of a judge to hear

cases to which he or she has been assigned. This is known as the duty to sit. “In making the

recusal decision, it is axiomatic that ‘a federal judge has a duty to sit where not disqualified which

is equally as strong as the duty to not sit where disqualified.’”13 This duty to sit is just as much

about fairness and even-handedness as is the duty to avoid partiality or the appearance of partiality.

Unless there is a true need for recusal, fairness dictates that litigants should get the judge randomly

assigned to hear their case. Recusal in situations where it is not required incentivizes and facilitates

the unfair and unseemly tactic of judge shopping. Judges in the Eighth Circuit (and other circuits)

have recognized this for decades.14

The statutory law and judicial canons governing recusal seek to balance these two

obligations. A judge must follow these rules precisely, reading the rules neither more broadly nor

12 See The Federalist No. 78, at 464 (Alexander Hamilton) (Clinton Rossiter ed., Signet Classic 2003) (“The executive

not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse

but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the

contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the

society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely

judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”).

13 Adams v. Rivera, No. 11-3021, 2011 WL 355665, at *1 (W.D. Ark. Aug. 11, 2011) (quoting Laird v. Tatum, 409

U.S. 824, 837 (1972)).

14 See, e.g., Sw. Tel. Co. v. F.C.C., 153 F.3d 520, 523 (8th Cir. 1998) (Hansen, J., Mem.) (“Judges have an obligation

to litigants and their colleagues not to remove themselves needlessly, because a change of umpire in mid-contest may

. . . facilitate judge-shopping.”) (quoting In re Nat’l Union Fire Ins. Co., 839 F.2d 1226, 1229 (7th Cir. 1988)).

more narrowly than they are written and interpreted by precedent.15 As relevant to the pending

motion, the statutory law and judicial canons of conduct direct a judge to “disqualify himself in

any proceeding in which his impartiality might reasonably be questioned.”16 But a judge “should

hear and decide matters assigned, unless disqualified . . . .”17 Accordingly, either I must recuse or

I must hear the case. There is no in-between.

Whether I must recuse or I must hear the case turns on whether my “impartiality might

reasonably be questioned” in this matter.18 In the Eighth Circuit, “[t]he test for disqualification or

recusal is an objective one and asks whether, from the perspective of ‘the average person on the

street,’ a reasonable man knowing all of the circumstances ‘would harbor doubts about the judge’s

impartiality.’”19 Of course, the reasonable person is and always has been a legal fiction—a

hypothesized observer who inhabits the Goldilocks zone of life. The reasonable person is not too

credulous, nor too incredulous. The reasonable person does not make unfounded assumptions, nor

does he hide his or her head in the sand. The reasonable person uses logic to analyze situations

but is not devoid of emotion and common sense. A publication from the Federal Judicial Center

that analyzes the recusal case law is most helpful in identifying the characteristics of the

hypothetical reasonable person in this area of the law:

The Fourth Circuit has clarified that the hypothetical reasonable observer is not a

judge, because judges, keenly aware of the obligation to decide matters impartially,

“may regard asserted conflicts to be more innocuous than an outsider would.” At

15 See In re Nat’l Union Fire Ins. Co., 839 F.2d at 1229 (“The judicial system has an interest in precise rules for

disqualification . . . .”)

16 28 U.S.C. § 455(a); Code of Conduct for United States Judges, Canon 3(C)(1). 28 U.S.C. § 455(b) lists specific

instances that require recusal, but Plaintiffs do not rely on any of these instances as grounds for recusal.

17 Code of Conduct for United States Judges, Canon 3(A)(2).

18 See supra note 16.

19 Tyler v. Purkett, 413 F.3d 696, 704 (8th Cir. 2005). A judge’s “actual state of mind, purity of heart, incorruptibility,

or lack of partiality are not the issue. . . . . The standard is purely objective. The inquiry is limited to outward

manifestations and reasonable inferences drawn therefrom.” Higganbotham v. Oklahoma ex rel. Oklahoma Transp.

Comm'n, 328 F.3d 638, 644 (10th Cir. 2003) (quoting United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993)).

the same time, the hypothetical observer is “not a person unduly suspicious or

concerned about a trivial risk that a judge may be biased.” The Fifth and Seventh

Circuits have noted that[,] while a judge must ask “how things appear to the well-

informed, thoughtful observer rather than to a hypersensitive or unduly suspicious

person,” an outside observer is “less inclined to credit judges’ impartiality and

mental discipline than the judiciary . . . .”20

The Eighth Circuit has made clear that a party seeking recusal for either actual partiality or

the appearance of partiality faces an uphill climb. “A party introducing a motion to recuse carries

a heavy burden of proof; a judge is presumed to be impartial and the party seeking disqualification

bears the substantial burden of proving otherwise.”21

Application of the Legal Standards

Plaintiffs do not suggest that I am actually biased or partial in this matter.22 Plaintiffs’ sole

contention is that my sitting on this case raises an appearance of partiality.23 Plaintiffs advance

several arguments as to why a reasonable person would question my impartiality. I have carefully

considered each of them, just as I have carefully considered Defendants’ counterarguments. For

the reasons set forth below, I have concluded that a reasonable person would not harbor doubts

about my impartiality and thus that I am duty-bound to preside over this case.

Let me start with the argument by Plaintiffs that borders on the frivolous. Plaintiffs note

that Governor Hutchinson is a Defendant in this case and is likely to be a key witness.24 Plaintiffs

also note that, in January of 2018, I donated $500 dollars to Governor Hutchinson’s re-election

20 Federal Judicial Center, Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144, 16 (2002) (first quoting

United States v. DeTemple, 162 F.3d 279, 287 (4th Cir. 1998), cert denied, 526 U.S. 1137 (1999); then quoting id.;

then quoting In re Mason, 916 F.2d 384, 386 (7th Cir. 1990); and then quoting id.).

21 United States v. Delorme, 964 F.3d 678, 681 (8th Cir. 2020) (quoting United States v. Oaks, 606 F.3d 530, 537 (8th

Cir. 2010)); see also Johnson v. Steele, 999 F.3d 584, 587 (8th Cir. 2021) (same).

22 See generally Pls.’ Mot. for Recusal (Doc. 27) at 3–4; Br. in Supp. of Pls.’ Mot for Recusal (Doc. 28) at 1.

23 See generally Pls.’ Mot. for Recusal (Doc. 27) at 3–4; Br. in Supp. of Pls.’ Mot for Recusal (Doc. 28) at 1.

24 Br. in Supp. of Pls.’ Mot. for Recusal (Doc. 28) at 2–3, 6.

campaign.25 As to Governor Hutchinson, that’s the entire basis of their recusal request: one

political contribution made approximately four years ago and (obviously) well before I took the

bench in November of 2019. That is insufficient to trigger recusal under the objective reasonable-

person standard.

A reasonable person would understand that a four-year-old political contribution connotes

nothing more than the view that the donor (me) thought the candidate (Governor Hutchinson)

would be better than his opponent for the contested position. It does not come close to the level

of ties that would suggest an inability to fairly decide a case involving the Governor as a defendant

or to fairly evaluate his potential testimony on the stand. This is particularly true where, as here,

the Governor is sued only in his official capacity for official actions. As Justice Scalia has

explained, even a current, ongoing friendship—a far closer tie than anything alleged here—does

not require recusal in official-capacity cases:

While friendship is a ground for recusal . . . where the personal fortune or the

personal freedom of the friend is at issue, it has traditionally not been a ground for

recusal where official action is at issue, no matter how important the official action

was to the ambitions or the reputation of the Government officer.26

Governor Hutchinson is not at risk of personal liability in this matter. Moreover, he has no

personal stake in the outcome of the case. The Plaintiffs do not suggest that he intends to run for

the Arkansas House of Representatives. In any event, political consequences “are not my concern,

and the possibility of them does not convert an official suit into a private one.”27

That possibility exists to a greater or lesser degree in virtually all suits involving

agency action. To expect judges to take account of political consequences—and to

assess the high or low degree of them—is to ask judges to do precisely what they

should not do. It seems to me quite wrong (and quite impossible) to make recusal

25 Id. at 3; Ex. 2 to Pls.’ Mot. for Recusal (Doc. 27-2) at 4.

26 Cheney v. U. S. Dist. Court for Dist. of Columbia, 541 U.S. 913, 916 (2004) (Scalia, J., sitting as a single justice).

27 Id. at 920.

depend upon what degree of political damage a particular case can be expected to

inflict.28

Plaintiffs suggest (without case law support) that this case is different from other official-

capacity cases because Governor Hutchinson voted for the 2021 reapportionment plan. But it is

unclear why or how voting for a reapportionment plan is legally different from signing a piece of

legislation or enforcing the legislation by way of executive action. Suits based on any of these

activities strike me as official-capacity suits to which the traditional rules would apply. Plaintiffs

also suggest (without case law support) that this case is different from other official-capacity cases

because the Governor might be called as a key witness. It may be rare that Governors testify in

official-capacity cases. But it does happen. And it does not somehow convert an official action

into a private one. Where, as here, a reasonable person could not question my ability to fairly

evaluate the Governor’s testimony, the fact that the Governor might testify does not change the

calculus.29

Unlike the cases provided by Plaintiffs, In re Mason from the Seventh Circuit seems fairly

on point here. In that Section 2 Voting Rights Act case concerning allegations of vote dilution

based on race, the venerable Judge Frank Easterbrook addressed a recusal argument that was quite

similar to the one made here by Plaintiffs:

28 Id.; see also In re Mason, 916 F.2d at 387 (“Reasonable, well-informed observers of the federal judiciary understand

that judges with political friends or supporters regularly cast partisan interests aside and resolve cases on the facts and

law.”).

29 Although the foregoing is quite sufficient on its own, there is yet another data point for a reasonable person to

consider. Months before this case hit my desk, I formally ended my affiliation with the Republican Party. I did so by

converting my voter registration from Republican Party to Optional, which, as I understand it, is the principal way in

Arkansas to signal independence from either party. While many reasonable jurists have a different view, I have come

to the personal conclusion that impartiality and the appearance of impartiality are best advanced by the formal removal

of oneself from membership in a political party. It is not enough, in my view, to ignore the red or blue shirt in your

closet while you are judging. Instead, you must throw out the red or blue shirt from your closet entirely. All this is

to say that my voter-registration change from Republican Party to Optional would further reduce the reasonableness

of any concern created by a one-time donation to Governor Hutchinson approximately four years ago.

Judge Tinder [before taking the bench] aided [the named defendants’] campaigns

for office . . . . Although donations show that Judge Tinder supported the general

political approach of these candidates, this adds little to the knowledge that [the two

candidates who received donations from Judge Tinder] are Republicans, as Judge

Tinder was. Any doubts about the judge’s impartiality are especially weak because

the complaint names [the defendants] in their official rather than personal

capacities.30

In sum, no reasonable person could harbor doubts about my impartiality as to Governor

Hutchinson, including my ability to fairly judge any testimony he might give.31

What about Attorney General Rutledge? As with Governor Hutchinson, Plaintiffs note

that I made a single monetary donation to her campaign—nearly five years ago in March of 2017.

Plaintiffs also note that I hosted a fundraiser for her at my home sometime in 2018. I cannot recall

the month of that fundraiser, but logically it would have been well in advance of her November

2018 election. That’s over three years ago. I do not see these two campaign-related contributions

any differently than I see the contribution to Governor Hutchinson. And I do not believe a

reasonable person could see them any differently either. The contributions mean only that I

thought Ms. Rutledge would be a better Attorney General than her opponent. No reasonable

person could question my impartiality, or my ability to fairly evaluate the Attorney General’s

testimony on the stand, based on these two political contributions.

30 In re Mason, 916 F.2d at 387.

31 For purposes of full disclosure, in my capacity as Solicitor General of Arkansas (July 2015–July 2018), I sometimes

represented Governor Hutchinson in his official capacity. I never represented him in a reapportionment matter. I

never discussed reapportionment with him, either generally or as it relates to the 2021 plan. Since July 2018, I have

seen and communicated with Governor Hutchinson on an infrequent basis. To the best of my recollection, most of

those interactions (and certainly all interactions since I have taken the bench) did not involve legal or political

substance. They were the equivalent of passing the time of day, exchanging pleasantries around the holidays, and life

updates. On one occasion in 2020, I took my law clerks to meet Governor Hutchinson as part of an informal program

I have created to introduce my law clerks to state leaders. On one occasion in 2021, I hosted, at the Court, interns

from the Governor’s Office and spoke to them about the work of a federal judge. On one occasion, I reached out to

the Governor to see if I could be of assistance with respect to the COVID crisis. I have never vacationed with the

Governor. We have never broken bread together, except at large public events. Our families do not meet socially.

Plaintiffs also note that I worked for Attorney General Rutledge in the Office of the

Attorney General from 2015–2018. Although I had multiple duties, my principal role as Solicitor

General was to represent the State of Arkansas in litigation at the United States Supreme Court,

the Eighth Circuit, and the Arkansas Supreme Court. At various times during my tenure, I reported

to the Chief Deputy Attorney General, the Chief of Staff, and Attorney General Rutledge. My job

required—on average—daily written communication (emails) with the Office’s leadership team,

including the Attorney General herself. In-person contact with the Attorney General was frequent

but not daily—perhaps, on average, twice a week for forty-five-minute increments (usually group

meetings). On a few limited occasions, I served as the Attorney General’s staff aide at out-of-state

conferences with other Attorneys General. Along with numerous other senior staff members of

the Office, I was invited to and attended the Attorney General’s large wedding.

Neither during the time I was Solicitor General, nor at any time thereafter, have I discussed

anything directly related to the 2021 reapportionment plan with the Attorney General. Neither

during the time I was Solicitor General, nor at any time thereafter, have I ever worked on anything

directly related to the 2021 reapportionment plan. None of this should be a surprise. I left the

Attorney General’s Office well before the 2021 reapportionment process began.32

I left the Attorney General’s Office in July of 2018 to serve as a Senior Director of Anti-

Corruption Compliance with Walmart. Since leaving the Attorney General’s Office, I have had

very limited in-person contact with the Attorney General. Aside from the fundraiser I hosted—I

cannot recall if that took place before or after I left the Office––I probably have seen her on a

32 As Solicitor General, I may have been involved with the consideration of joining amicus briefs written by other

states in gerrymandering cases at the U.S. Supreme Court. I do not remember whether I reviewed any amicus briefs

of that nature or whether I made any recommendations about joining one or more of them. As Solicitor General, I

may have been involved in considering the sufficiency of ballot language on one or more independent redistricting

commission amendments proposed by members of the public. I do not recall my level of involvement, if any.

handful of occasions. But none stand out in my mind. We have communicated in writing

infrequently, and the large bulk of those communications have been non-substantive exchanges of

pleasantries, well wishes, and updates on our lives. Since I took the bench in November of 2019,

all communications with the Attorney General (which have been extremely infrequent) have been

non-substantive. I do not vacation with the Attorney General. I do not break bread with her,

except at large public gatherings. I do not visit her home. She does not visit my home. Our families

do not socialize together.

When I first took the bench, I considered whether to place the Attorney General on my

recusal list. For the reasons discussed above on pp. 7–9, I did not need to do so for official-capacity

cases. Additionally, at that time, it had been nearly a year and a half since I left the Attorney

General’s Office. Any partiality and appearance-of-partiality concerns based on our professional

relationship as colleagues from July 2015 to July 2018 had likely dissipated by November of 2019.

Nonetheless, out of an abundance of caution that someone, somehow, could still question my

impartiality, I decided that an additional cooling-off year was the wisest course and placed the

Attorney General on my recusal list. In September of 2020, I removed the Attorney General from

my recusal list. At that time, it had been over two years since I left the Attorney General’s Office.

After two years, in my view, no reasonable person could possibly consider our past professional

relationship to affect my ability to be impartial.

Today, we are even further removed from my tenure as Solicitor General and my past

professional relationship with the Attorney General. It has been approximately three-and-a-half

years since I left the Office of the Attorney General. To put that into context, I have been out of

that Office for more time than I worked there. This type of past professional relationship does not

trigger a need for appearance-of-partiality recusal under the reasonable-person standard. As I have

already explained above, it is far less than the type of ongoing personal friendship that Justice

Scalia concluded did not require recusal in cases where the friend was a defendant in an official

capacity only. Like Governor Hutchinson, Attorney General Rutledge does not face any personal

liability here. Nor is she in any way directly impacted by the outcome of this case. No one suggests

she is running for the Arkansas House of Representatives, either now or in the future. Moreover,

as I also explained above, the Plaintiffs’ suggestion (unsupported by case law) that this case

meaningfully differs from other official-capacity cases is unpersuasive.

Judges frequently come to the bench having served as high-level government lawyers.

That often means coming to the bench having had professional relationships with high-level

government officials. For one high profile example—an example that highlights a far closer

relationship than what is involved in the instant case—consider Justice Byron White and United

States Attorney General Robert Kennedy:

Justice White was close friends with Attorney General Robert Kennedy from the

days when White had served as Kennedy’s Deputy Attorney General. In January

1963, the Justice went on a skiing vacation in Colorado with Robert Kennedy and

his family, Secretary of Defense Robert McNamara and his family, and other

members of the Kennedy family. . . . At the time of this skiing vacation there were

pending before the Court at least two cases in which Robert Kennedy, in his

official capacity as Attorney General, was a party. . . . In the first of these,

moreover, the press might have said . . . that the reputation and integrity of the

Attorney General were at issue. There the Department of Justice had decreed

deportation of a resident alien on grounds that he had been a member of the

Communist Party. (The Court found that the evidence adduced by the Department

was inadequate.)

Besides these cases naming Kennedy, another case pending at the time of the

skiing vacation was argued to the Court by Kennedy about two weeks later. See

Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963). That case was

important to the Kennedy administration, because by the time of its argument

everybody knew that the apportionment cases were not far behind, and Gray was

a significant step in the march toward Reynolds v. Sims, 377 U.S. 533 (1964).

When the decision was announced, it was front-page news. . . . Attorney General

Kennedy argued for affirmance of a three-judge District Court’s ruling that the

Georgia Democratic Party’s county-unit voting system violated the one-person,

one-vote principle. This was Kennedy’s only argument before the Court, and it

certainly put “on the line” his reputation as a lawyer, as well as an important policy

of his brother's administration.33

Justice White did not recuse in those cases and no one suggested he should have.34 The basic rule

for former government lawyers is that recusal is required “[w]here [a judge] has served in

governmental employment and in such capacity participated as counsel, adviser, or material

witness concerning the proceeding or expressed an opinion concerning the merits of the particular

case in controversy.”35 I have not done these things. No one suggests I have. And, while this rule

does not strictly limit the situations in which a past professional relationship based on government

employment could give rise to a reasonable concern about a judge’s impartiality, it certainly

suggests that more than normal high-level government service is necessary to trigger a reasonable

appearance-of-partiality concern.

As to the dissipation of any potential taint from my past professional relationship with the

Attorney General, it is worth considering the recommended cooling-off period before former law

clerks may appear before the judge for whom they clerked. The judge-former law clerk

relationship is generally far more substantial than (or at least as substantial as) a judge’s

relationship with an old boss. Moreover, the importance of prevailing in a case to the former law

clerk is more substantial than is the importance of prevailing in a case to a government official

sued in his or her official capacity. The young lawyer has far more riding on it.

The general consensus appears to be that a year cooling-off period is enough to preclude a

reasonable person from harboring doubts about a judge’s impartiality as to a former law clerk.

33 Cheney, 541 U.S. at 925 (internal citations omitted).

34 Id. at 924–25.

35 28 U.S.C. § 455(b)(3); Code of Conduct for United States Judges, Canon 3(C)(e).

Consider an Advisory Opinion from the Advisory Committee on Judicial Conduct of the District

of Columbia Courts:

A recurring issue for judges involves whether they should disqualify themselves

when former law clerks appear before them. Rule 2.11(A) of the Code of Judicial

Conduct requires judges to disqualify themselves in any proceeding in which their

impartiality might reasonably be questioned. Judges are not automatically required

to disqualify themselves whenever a former law clerk appears before them.

However, an appearance within a short period of time after the end of the clerkship

could, in some circumstances cause a reasonable person to question a judge’s

impartiality, and a waiting period may alleviate this concern. How long that period

of repose should be is a matter of judgment. The Advisory Committee on Judicial

Conduct advises as a general rule of thumb that law clerks should not appear before

the judges for whom they clerked within a year after the end of the clerkship. A

longer period may be appropriate depending on the relationship between the judge

and the former law clerk. Judges should also ensure that their former law clerks

understand that they may not participate in matters in which they were involved

during their clerkships, and that they may not use or disclose confidential

information obtained in the course of their duties.36

In this case, far more than a year has elapsed since my government service. It has been three-and-

a-half years. This cooling-off period—more than triple the recommended cooling-off period for

former law clerks—is enough. No reasonable person can harbor doubts about my impartiality as

to the Attorney General, including my ability to fairly evaluate any testimony she might give.37

36 Advisory Committee on Judicial Conduct of the Dist. of Columbia Courts, Advisory Opinion No. 13 (July 9, 2014),

https://www.dccourts.gov/sites/default/files/divisionspdfs/Disqualification-When-Former-Law-Clerks-Appear-

Before-Judges-7-9-14.pdf. There might be a fair argument that a two-year cooling-off period is better. Advisory

Opinion Number 24 from the Guide to Judicial Policies and Procedures “recommends recusal from cases involving

the judge’s former employer for the first two years after a judge leaves that employer.” Molette v. Title Max, No.

1:13-cv-1615, 2013 WL 11327699, at *4 (N.D. Ga. June 11, 2013). Again, I left the Office of the Attorney General

over three-and-a-half years ago.

37 I have also considered whether the whole is greater than the sum of its parts. That is, even if no reasonable observer

could harbor doubts about my impartiality based on any of the relationships or acts discussed above, does the

combination of them somehow multiply their significance or effect in a way that changes the analysis? In this case,

given the passage of time involved and the official-capacity nature of the suit, I conclude that the whole equals but

does not exceed the sum of its parts. I donated to the Governor’s re-election campaign in January of 2018 (nearly four

years ago). I donated to Attorney General Rutledge’s campaign even earlier, in March of 2017 (nearly five years ago).

And while I cannot recall the month in which I hosted the fundraiser for the Attorney General, it logically would have

been before the November 2018 election––that’s over three years ago. My employment for the Office of the Attorney

General ended in July 2018 (nearly three-and-a-half years ago). Temporal distance alone is sufficient to assuage all

but the unreasonable person’s doubts about my impartiality in this official-capacity case, including my ability to fairly

The two cases Plaintiffs focus on miss the mark. Plaintiffs liken the case at bar to United

States v. Bobo.38 As another judge in the Eastern District of Arkansas stated, “[Bobo] is a non-

controlling case with appreciably different facts.”39 Bobo was a criminal case in which three

defendants, including a former governor, were indicted for corruption.40 Bobo, with its personal

criminal implications, is a far cry from the civil official-capacity claims lodged here against the

Governor and the Attorney General. To repeat, neither the Governor nor the Attorney General

faces personal liability. This distinction is incredibly important and always has been in recusal

precedent. In any event, the judge in Bobo unequivocally said that nothing in the case compelled

him to step aside.41 It is true that the judge ultimately recused, but his decision to do so seems to

ignore the concomitant duty a judge has to sit in cases where recusal is not required.42 I cannot

ignore that duty.43

Plaintiffs also point to Judge Baker’s decision on a recusal motion in Burton v. Arkansas

Secretary of State.44 For starters, Judge Baker denied the motion.45 Plaintiffs know that, but find

significance in the length of time that Judge Baker says she listed Pat O’Brien on her recusal list.46

In 2010, prior to her judicial appointment, Judge Baker hosted a fundraiser for and donated money

evaluate any testimony that might be given. There’s just no fire to the recusal grounds urged by the Plaintiffs, and

any smoke that might have existed cleared years before this case was filed.

38 Br. in Supp. of Pls.’ Mot. for Recusal (Doc. 28) at 6; see also Bobo, 323 F. Supp. 2d 1238 (N.D. Ala. 2004).

39 Burton v. Arkansas Sec’y of State, No. 4:11-cv-00710-KGB, 2015 WL 11090414, at *8 (E.D. Ark. Feb. 26, 2015).

40 Id.

41 Bobo, 323 F. Supp. 2d at 1241.

42 Id. at 1242–43.

43 Plaintiffs say that the judge in Bobo “recused himself because he determined that a reasonable observer could

question his impartiality.” Br. in Supp. of Pls.’ Mot. for Recusal (Doc. 28) at 6. Not so. Under the reasonable-

observer standard, the judge said that recusal was not required. Bobo, 323 F. Supp. 2d at 1241.

44 Br. in Supp. of Pls.’ Mot. for Recusal (Doc. 28) at 7–8.

45 Burton, 2015 WL 11090414, at *8.

46 Br. in Supp. of Pls.’ Mot. for Recusal (Doc. 28) at 8.

to Mr. O’Brien, who was then running for Secretary of State.47 He lost.48 In 2012, Judge Baker

took the bench and placed Mr. O’Brien on her recusal list.49 Mr. O’Brien remained on that list at

the time Judge Baker decided the recusal motion (February of 2015).50 Plaintiffs appear to suggest

that I should similarly apply a five-year cooling-off period. 51

Judge Baker did not expound on her reasons why Mr. O’Brien was on her recusal list in

2015. She certainly did not say that her pre-appointment political activity alone led her to make

that decision. To the contrary, Judge Baker specifically said that such activity could not suggest

bias.52 Judge Baker is in good company; “[c]ourts that have considered whether pre-judicial

political activity is . . . prejudicial regularly conclude that it is not.”53

Conclusion

Some members of the public might be under the impression that judges relish sitting on

cases like the one at bar. Let me remedy that misconception. Cases like the one at bar are thankless

tasks. Generally, they take an inordinate amount of time, involve incredibly complicated and

nuanced fact-finding, are highly emotional for the litigants, lawyers, and public, and end with

47 Burton, 2015 WL 11090414, at *1.

48 Id.

49 Id.

50 Id.

51 Br. in Supp. of Pls.’ Mot. for Recusal (Doc. 28) at 8.

52 See Burton, 2015 WL 11090414, at *8 (“Even if the pre-appointment political activity could suggest bias—which

it does not––that conduct has no relationship to [one of the Defendants].”) (emphasis added).

53 In re Mason, 916 F.2d at 386 (collecting cases); see also Higganbotham, 328 F.3d at 645 (10th Cir. 2003) (“It is, of

course, an inescapable part of our system of government that judges are drawn primarily from lawyers who have

participated in public and political affairs. The fact of past political activity alone will rarely require recusal.”) (internal

quotations omitted). Whatever reason Judge Baker had for keeping Mr. O’Brien on her recusal list, my review of the

case law makes clear that pre-appointment political activity like the contributions and the hosting of a fundraiser in

the case at bar are not enough to trigger the need for recusal based on appearance-of-partiality concerns.

conclusions that satisfy no one. Judges dutifully preside over these cases not because we want to,

but because we have taken a sacred oath to serve the public by administering justice in all cases.

Recusing when it is not necessary under the law is the easy choice. It allows a judge to

avoid cases he or she does not want to decide. It allows a judge to avoid cases with hard calls,

cases that are high-profile, cases where there will be public controversy no matter how the issue is

decided, cases that are a lot of work, and so on. It foists those cases onto colleagues who already

have large dockets and hard cases of their own. This sort of duck-and-cover maneuver is an

abdication of the judicial role and an insult to one’s colleagues in the district. Because I have

concluded that my impartiality cannot reasonably be questioned in this case and that I can fairly

evaluate the testimony of any witness likely to be called in this case, I cannot recuse.™4 Plaintiffs’

Motion for Recusal is therefore DENIED.

IT IS SO ORDERED this 5th day of January 2022.

XR

LEE P. RUDOFSKY

UNITED STATES DISTRICT JUDGE

*4 Although Plaintiffs only argue the existence of an appearance of partiality, I have taken it upon myself to consider

whether actual prejudice, bias, or conflict exists. See 28 U.S.C. § 455(b). They do not.

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