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The main question regarding Judge Mark Fuller’s behavior in the Siegelman case is whether it was appropriate for him to have taken the case in the first place. So I discussed the issues with Professor David Luban, University Professor and Professor of Law and Philosophy at Georgetown University, and a well known legal ethicist. Luban is the author of Legal Ethics and Human Dignity, issued this year by Cambridge University Press, among other works, and is an occasional contributor to Harper’s Magazine.
1. Judge Fuller is a Republican, and before coming to the bench he worked on a number of Republican campaigns. He served as a member of the Alabama Republican Executive Committee at a time when Don Siegelman was a Democratic state office holder. Was it proper for Fuller to sit as a judge in the Siegelman prosecution?
There’s a well-accepted legal standard for when a judge should disqualify himself from a case: the judge should bow out when his impartiality can reasonably be questioned. That’s the standard in both the judicial code of ethics and in federal law. The point is to maintain confidence in the fairness and integrity of the legal system. Keeping that in mind, the bare fact that Judge Fuller is a Republican clearly isn’t enough to raise questions. Most judges belong to one party or the other, and a lot got their job on the bench because they were active party members. We expect that they can put mere party sympathy aside when they try cases. But on these facts, Judge Fuller was a lot more than just an active party member. He was a electoral strategist, an executive committee member, and an anti-Siegelman campaigner. How can a reasonable person fail to have doubts about his impartiality? If you’ve spent years organizing the “Beat the Yankees” Club, you should not be umpiring a Yankees game–even if you think you can call the game honestly.
2. In addition to his political engagement, a Siegelman appointee questioned some extraordinary payments Fuller made while he was a district attorney. There was a litigation in which Fuller testified, and the court ruled against him and for the state retirement agency. Fuller was quoted as stating that this was “politically motivated.” Does this raise any questions?
If Judge Fuller complained that it was “politically motivated,” it sounds like he might be blaming Siegelman for it. Without knowing the context it’s hard to tell whether the judge was complaining only about the appointee, or the governor as well. If the latter, it means that the judge had expressed a grudge against Siegelman and obviously should not be trying his case.
3. Judge Fuller appears to derive most of his income from a closely-held business in which he remains the controlling shareholder. The business is almost entirely involved with government contracts, with the Department of Defense and Department of Justice as contractors. What is your reaction when you look at the recusal motion, in which this was set out in some detail, the Justice Department’s response, and Judge Fuller’s ruling?
Generally, the standards for recusal motions are tough, to discourage parties from judge-shopping. I started reading these papers with that viewpoint—namely that the defendant had an almost impossible case to make. But the more I read the papers, the more I was persuaded that this actually was one of those rare cases where the burden was met. Remember: the legal standard is whether you can reasonably question the judge’s impartiality. If so, the law requires the judge to disqualify himself. This is not a run-of-the-mill criminal case where a judge’s commercial side-dealings with the government would not raise a question about pro-government bias. This one is a politically charged case involving a former governor in which political leaders in Washington, D.C., who ultimately exercise tremendous control over the process of military procurement contracts, are likely to take great interest. Given the amount of money Judge Fuller’s company gets from government contracts, any reasonable person would question how impartial he could be. He should not have taken this case, and with a recusal motion made, he had no option but to drop out.
What amazes me about these facts is that they combine past political activism against the governor, a possible grudge against the governor, and the judge’s company’s financial dependence on the government’s good graces. If they’re right (I don’t have any independent knowledge of that), any one by itself would raise reasonable questions about the judge’s ability to be impartial. Taken together, we have a perfect storm. Under these circumstances, impartiality would take superhuman self-control, and we don’t expect judges to be superhuman. The recusal standard is designed so that we don’t have to expect it.
4. You read the Justice Department’s papers, which were filed both by the U.S. Attorney’s office in Montgomery and by the Public Integrity Section at the Department of Justice in Washington, D.C.
I was troubled by the papers filed by the Department of Justice. Half the argument is an ad hominem attack on their adversary’s attorneys for daring to question the government’s fairness. Without offering any evidence, it accuses them of bad faith, and it’s loaded with insulting adjectives. The motion makes it look like the government is blowing smoke to deflect attention away from the real issue.
But rhetorical overkill isn’t the main problem. The most troubling problem is that the Justice Department’s Professional Integrity Section joined this response. That was a real lapse of professional judgment. PIN (as it’s called) is in charge of policing public officials. That includes judges as well as elected officials. Under some circumstances, PIN could be called on to make an independent after-the-fact assessment of Judge Fuller’s conduct. By signing onto the Justice Department’s submission at this point, before there’s been a hearing on the recusal motion, the Public Integrity Section makes it virtually impossible for it to do its oversight job later, because it’s already staked out a position on the case before hearing all sides of the argument.
More from Scott Horton:
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
i. stand with israel
I listen to a lot of conservative talk radio. Confident masculine voices telling me the enemy is everywhere and victory is near — I often find it affirming: there’s a reason I don’t think that way. Last spring, many right-wing commentators made much of a Bloomberg poll that asked Americans, “Are you more sympathetic to Netanyahu or Obama?” Republicans picked the Israeli prime minister over their own president, 67 to 16 percent. There was a lot of affected shock that things had come to this. Rush Limbaugh said of Netanyahu that he wished “we had this kind of forceful moral, ethical clarity leading our own country”; Mark Levin described him as “the leader of the free world.” For a few days there I yelled quite a bit in my car.
The one conservative radio show I do find myself enjoying is hosted by Dennis Prager. At the Thanksgiving dinner of American radio personalities (Limbaugh is your jittery brother-in-law, Michael Savage is your racist uncle, Hugh Hewitt is Hugh Hewitt) Dennis Prager is the turkey-carving patriarch trying to keep the conversation moderately high-minded. While Prager obviously doesn’t like liberals — “The gaps between the left and right on almost every issue that matters are in fact unbridgeable,” he has said — he often invites them onto his show for debate, which is rare among right-wing hosts. Yet his gently exasperated take on the Obama–Netanyahu matchup was among the least charitable: “Those who do not confront evil resent those who do.”
Pairs of moose-dung earrings sold each year at Grizzly’s Gifts in Anchorage, Alaska:
An Alaskan brown bear was reported to have scratched its face with barnacled rocks, making it the first bear seen using tools since 1972, when a Svalbardian polar bear is alleged to have clubbed a seal in the head with a block of ice.
A former prison in Philadelphia that has served as a horror-movie set was being prepared as a detention center for protesters arrested at the upcoming Democratic National Convention, and presumptive Republican presidential nominee Donald Trump fired his campaign manager.
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“Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'”