By Tyler Cooper, FTC senior researcher

The federal recusal law states, “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

As an appellate attorney in 2016, Kyle Duncan co-authored two amicus briefs in a voting rights case, Veasey v. Abbott — one that April (pp. 25ff) and one that October (pp. 67ff).

In 2018, Duncan became a federal judge, and last month, Duncan was assigned to hear an appeal in the same case.

Might his impartiality reasonably be questioned considering these circumstances?

Consider, too, the next section of the statute, which provides specific examples of situations that require recusal: “He shall also disqualify himself […w]here in private practice he served as lawyer in the matter in controversy.”

So clearly now-Judge Duncan must recuse, if not for his impartiality being reasonably questioned, then since then-private practice attorney Duncan authored two briefs in this case, right?

Wrong, said Texas’ attorney general and solicitor general. In a 16-page brief, they argue that this obvious instance requiring recusal was actually not so obvious and that Duncan should sit.

Then there are the political considerations. Duncan was appointed by President Trump and the Texas Attorney General’s office is Republican controlled. There’s no doubt the lawyers involved would dispute the explanatory value of those additional details. They’d claim, as they did in their brief, that they simply found it unreasonable for a person to question Duncan’s impartiality based on his prior involvement in the case as an attorney in private practice. But let’s not kid ourselves. Texas Republicans would not be filing the same brief were Duncan a President Obama appointee.

In law there’s a concept called the “reasonable person standard,” which is taught as an objective, not subjective, standard. However, outside of the confines of academia and the courtroom, we know that “reasonableness” is squishy. People greatly differ on what they consider to be “reasonable.”

That is exactly why the purpose of the recusal statute is to guard against both actual impropriety and the appearance of impropriety. When lawyers and judges belittle “the appearance of impropriety” as a concept, as here, then we run the risk of actual impropriety creeping into the system.

This time, in this case, the conflicted judge recused. But the fact that this outcome was ever questioned demands new and additional oversight and accountability.