Can the impartiality of a judge be reasonably questioned if she asks questions during oral arguments, but does not decide the case?

On Tuesday, I blogged about Judge Andrew Brasher’s recusal from the Eleventh Circuit’s en banc felon disenfranchisement case. Judge Brasher made that decision on his own accord. The plaintiffs in that case had previously sought his recusal; that motion became moot. The plaintiffs also seek the recusal of two other judges on the Eleventh Circuit: Judges Luck and Lagoa. You can find their motion here, and the State’s response here.

I am going to simplify the facts a bit in order to cut to the core legal question. On November 6, 2019, the Florida Supreme Court heard oral arguments in a case that considered the constitutionality of Amendment 4. (The parties dispute whether that review was limited to the state constitution, or whether that review also involved the federal constitution). At the time, Luck and Lagoa served as Justices on the Florida Supreme Court. During the oral argument, both judges asked question that implicated the constitutionality of Amendment 4.  (The plaintiffs include some of the questions on pp. 12-15 of their brief). Two weeks later, Judges Luck and Lagoa were confirmed to the Eleventh Circuit. The Supreme Court issued its decision in the case on January 16, 2020. By that point, Luck and Lagoa were already off the court.

The parties dispute how closely related the Florida Supreme Court case is with the current appeal before the Eleventh Circuit. I will table that question for now. Rather, I will ask a more basic question: can the impartiality of Judges Luck and Lagoa be reasonably questioned because they asked questions, but did not decide the case?

The plaintiffs do not cite any cases that addresses this specific question. I can’t imagine any authority exists. We are presented with such an unusual situation where a judge asks questions during oral argument, and two weeks later is confirmed to another court, where a related matter arises.

After some reflection, I think the State has the better argument. From pp. 3-4 of their brief:

Second, although Judges Luck and Lagoa participated in the oral argument over the advisory opinion, they were no longer members of the Florida Supreme Court by the time that court rendered its decision. Movants make much of questions Judges Luck and Lagoa asked during the argument, but every seasoned litigator has had the experience of being asked seemingly sympathetic questions at oral argument only later to be disappointed by the court’s decision. Judges ask questions during oral argument for a variety of reasons, and such questions do not come remotely close to implicating the concerns that arise when judges sit in review of their own prior rulings.

It is a favorite past-time to read oral argument transcripts, and try to figure out how a judge will vote based on her questions. Alas, this sort of tea-leaf reading is seldom accurate. Judges will often ask questions as a devil’s advocate. Perhaps the Judge wants to probe the weaknesses of a position he agrees with. Or perhaps the Judge is using the advocates to respond to a colleague’s position. I don’t think questions, by themselves, are enough to reasonably question a judge’s impartiality.

There is another factor to consider. How did Luck and Lagoa vote at conference? I do not know how the Florida Supreme Court handles conferences. Do the Justices vote a few days after oral arguments? For argument’s sake, I’ll presume that there was a conference vote at some point after oral arguments, and before Luck and Lagoa were confirmed. Even then, I’m not troubled. A Judge’s vote at conference is not final. (Just this past term, I suspect several votes flipped after conference. And let’s not forget NFIB v. Sebelius.) A Judge reserves the right to change her vote at any time before the opinion is issued. With good reason. We view judges as impartial, and always open to changing their mind. The conference vote doesn’t count.

The Supreme Court recently addressed this precise issue in Yovino v. Rizo (2019). The Ninth Circuit had a bizarre practice: the en banc court would count the vote of a judge who cast a vote at conference, but died before the final opinion was issued. As a result, Judge Stephen Reinhardt was able to decide a case from beyond the grave. The Supreme Court can’t catch them all, but they caught this one. The per curiam order explained:

As for judicial practice, we are not aware of any rule or decision of the Ninth Circuit that renders judges’ votes and opinions immutable at some point in time prior to their public release. And it is generally understood that a judge may change his or her position up to the very moment when a decision is released.

Judges are allowed to change their views. And that malleability is a good thing. I would be troubled if judges walked into arguments with a set predisposition, that could not be disturbed.

Yovino demonstrates that a Judge’s questions during oral arguments, and even a conference vote, are not “immutable.” Judges are allowed to keep an open mind till late in the game. These preliminary matters are not enough to question a judge’s impartiality. The only decision that counts is the final order. Judges Luck and Lagoa did not participate in the Florida Supreme Court’s published decision. Therefore, they are not disqualified.

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