“ I did a thorough evaluation of all the facts and applied the guidance from the Committee on Codes of Conduct in the advisory opinion concerning the business relationships of a judge ’ s spouse ,” Tunheim said in an email statement .
The advisory opinion guides judges to consider factors such as the closeness of the spouse-client relationship and how involved the spouse is in the client work .
The Tunheim agency publicly touted its Cargill relationship for years and boasts online about Kathy Tunheim ’ s “ active role in many of the agency ’ s client relationships .”
Kathy Tunheim declined to comment , but her firm scrubbed most references to Cargill from its website soon after ProPublica reached out .
The advisory opinion Vitter and Tunheim cited instructs judges to recuse themselves from any case in which an objective observer might reasonably question their impartiality . But in almost every example examined , the objective observer test was performed by that same judge .
Charles Gardner Geyh , distinguished professor of law at Indiana University , said federal law grants judges a “ presumption of impartiality .” But even with case law suggesting judges should err “ in favor of recusal ,” some still cite conflicting case law to justify a decision to stay on a case .
Experts explain that some judges don ’ t care for the stigma that comes from a recusal . Judges can also fail to perceive either that they are biased or that they appear biased .
For as little oversight as there is regarding potential conflicts of interest on the federal bench , there ’ s even less for state supreme courts . Since they are the court of last resort at the state level , there ’ s no opportunity to review the recusal decisions of most states ’ justices , short of the U . S . Supreme Court . But it almost never hears those cases .
Geyh said the lack of oversight compounds the “ self-policing ” problem since lawyers are typically wary of
58 x The Trial Lawyer antagonizing judges by challenging their potential biases . When they do , he said appellate courts often defer back to the judges ’ decision anyway .
Without the threat of discipline , Geyh said the “ buck stops with the judge .”
“ If you put those people in the position of grading their own homework — ruling on their own biases — then you have a problem .”
THE PARENT TRAP
It ’ s not just spousal conflicts . In at least two states , the sons of powerful state politicians sit on the supreme court . In both cases , they ’ ve refused to recuse on consequential cases involving their parents .
In North Carolina , Supreme Court Justice Phil Berger Jr . has repeatedly heard cases in which his father , Senate President Pro Tem Phil Berger Sr ., not only publicly lobbied for a specific result but also was a named party in the case .
The justice repeatedly sided with his father ’ s interests , including cases in which Phil Berger Sr . was a named defendant : a challenge to the constitutionality of a partisan redistricting plan and a challenge to a voter ID law spearheaded by Phil Berger Sr .
The justice had recused himself from the voter ID case while serving on the Court of Appeals but said he did not need to as Supreme Court justice because his father was a defendant only in his “ official capacity .”
Watchdogs also criticized Ohio Supreme Court Justice Pat DeWine for what they say were hypocritical promises in 2018 to recuse himself from cases in which his father , Mike DeWine — then the state ’ s attorney general and now its governor — was “ personally involved .”
But the younger DeWine chose to hear several high-profile cases in which his father was active in the litigation , including a series of impactful redistricting cases in which Pat DeWine helped cast a swing vote in a 4 – 3 decision that dismissed challenges to the controversial maps drawn by a Republican-led committee . Mike DeWine sat on that committee and publicly advocated for the constitutionality of its work .
Geyh , who filed an amicus brief in one of the Berger cases , said ethics laws are “ pretty bloody explicit ” when it comes to recusing from a case in which a parent is a named party .
Neither justice returned requests for comment .
THE FIX IS REALLY HARD
Amid calls to bring conflict-of-interest laws into the 21st century , a bevy of Band-Aids have been proposed , but no comprehensive solutions .
Experts hesitate at the suggestion of tougher recusal rules , fearing mass disqualification could shut down the judiciary . Most also reject the idea of limiting judicial spouses ’ careers or speech .
“ As soon as you reform the system , you ’ re penalizing one spouse ,” Jarvis said . The Brennan Center for Justice at NYU School of Law proposed a series of reforms in 2016 , including independent review of all motions for disqualification — at both the U . S . and state supreme courts — so judges don ’ t effectively serve as the final arbiters of their own biases . Brennan also advocated ending the common practice of judges keeping their reasons for recusal — or non-recusal — secret , which can stymie the appeals process and create a void in case law .
Critics have argued the reforms could slow the wheels of justice and allow political actors to weaponize recusal . Many advocates for reform see transparency measures as an achievable next step .
“ The fix is really hard ,” said Amanda Frost , professor of law at the University of Virginia . But “ transparency would improve the process for everyone .”
This story was originally published by ProPublica .