Donald Trump shamed himself and his party -- and flunked judicial ethics 101 -- with his flagrantly racist suggestion that an Indiana-born federal judge hearing a lawsuit against his sham Trump University had an "inherent conflict of interest" because he was "of Mexican heritage."
Putting aside Mr. Trump's noxious pronouncements (which also included a suggestion that a Muslim judge might be similarly biased), there are situations, unrelated to a judge's race, ethnicity, gender, or religion, when a genuine conflict of interest exists, and a judge's recusal is essential for preserving the appearance and reality of judicial fairness central to the nation's justice system.
Ruling in such a case on Thursday the Supreme Court, in Williams v. Pennsylvania, correctly overturned the death sentence of a Pennsylvania death row inmate named Terrance Williams because of a glaring, due process-denying conflict. In 2014, Mr. Williams's death sentence (for a brutal killing he committed at age 18) was upheld by members of Pennsylvania's Supreme Court, including then-Chief Justice Ronald Castille -- the same man who, as Philadelphia's district attorney years earlier, approved and oversaw Mr. Williams's prosecution and the state's post-trial defense of the death verdict.
"Where a judge has had an earlier significant, personal involvement as a prosecutor in a critical decision in the defendant's case, the risk of actual bias in the judicial proceeding rises to an unconstitutional level," Justice Anthony Kennedy, the court's swing justice, wrote in the majority opinion this week, which was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. "The due process guarantee that 'no man can be a judge in his own case' would have little substance if it did not disqualify a former prosecutors from sitting in judgment of a prosecution in which he or she had made a critical decision," Justice Kennedy explained.
"Bias is easy to attribute to others and difficult to discern in oneself," Justice Kennedy observed, a point stressed in an amicus brief filed by colleagues of mine at the Brennan Center for Justice. The brief argued that recusal requests merit independent review and that decisions should not be left to the very same judges whose potential bias is under question.
Mr. Williams had been scheduled for execution in March 2015. His death was averted when Pennsylvania's Democratic governor, Tom Wolf, declared a death penalty moratorium.
Campaigning for election to Pennsylvania's highest court in 1993, Mr. Castille boasted of sending Mr. Williams and 44 other defendants to death row. Greatly compounding the apparent impartiality problem, the decision Mr. Castille was so determined to participant in directly implicated his own record as district attorney. The decision in question tossed out a lower court ruling that ordered a new sentencing hearing for Mr. Williams based on a finding of serious ethical misconduct by the trial prosecutor -- Mr. Castille's subordinate in the DA's office -- in intentionally hiding evidence that Mr. Williams had been sexually abused by his victim, which might have helped avoid the death sentence.
Far from a convincing model of judicial neutrality, the situation "gave rise to an unacceptable risk of actual bias," Justice Kennedy and four of his colleagues sensibly concluded. It did not matter that Mr. Castille's vote was not decisive and the ruling upholding Mr. Williams' death sentence was unanimous. The participation of an interested member tainted the deliberative process and undermined public trust.
Justice Kennedy & Co. deserve praise for recognizing a severe affront to the Constitution's promise of due process of law. But by any reasonable reckoning, this was not a tough call. It is troubling that Chief Justice John Roberts, who should be leading the way on elevating judicial ethics, instead dissented. along with two other justices on the court's right flank, Samuel Alito and Clarence Thomas.
The Chief Justice's dissenting opinion faulted the majority opinion for relying "on proverb rather than precedent." That glib critique ignores both the soundness of the legal maxim against acting as a judge in your own case and the Court's proud 2009 ruling, in Caperton v. A.T. Massey Coal Co., also authored by Justice Kennedy, which found "an unconstitutional potential for bias" in the refusal of a member of West Virginia's Supreme Court to recuse himself in a case involving someone who just spent $3 million to help elect him.
Chief Justice Roberts also dissented from that landmark victory for fair courts, which Justice Kennedy was able to cite for support in his Williams opinion.
This week's due process victory, although still a big win, was just 5-3, despite the egregiousness of the judicial conflict of interest. It should have been 8-0.