Nov. 1 update: through a judiciary spokesperson, we’re told Judge Levy of E.D. Mich. “does not have (and never has had) any plans to return to teaching [after 2019], and therefore removed the University of Michigan from her recusal list several years ago.” (A U-M spokesperson had told us she was still on the teaching roster, which is why we had included her.) In the end, we’ve opted to remove her from the post below.

When Justice Gorsuch was serving on the Tenth Circuit, he recused in five cases involving the University of Colorado during the time in which he was serving as an adjunct professor at the law school. This we can glean from a detailed document of his recusals that the Senate Judiciary Committee released at the time of his 2017 Supreme Court nomination.

Though Justice Barrett’s Seventh Circuit recusals were not made public, what was released was her “conflicts sheet,” i.e., the document she uploaded into the lower courts’ conflict-check software so that if one of those entities appeared in a Seventh Circuit proceeding, the software would automatically skip her (which counts as a recusal) and another non-conflicted judge would be assigned.

Barrett, a former full-time Notre Dame Law professor (see photo at right), continued teaching at ND Law during her three-year appeals courts stint, and both the law school and the university appear on her conflicts sheet.

Now compare that to a whole host of judges who are adjuncts at Ohio State’s Moritz College of Law: they have lengthy non-recusal records.

In case after case, judge after judge, there are barely any recusals to be found. (We found one, from Judge Algenon Marbley in 2015, though that occurred just eight months after he resigned from the OSU Board under a cloud, so there could have been other factors for that recusal.)

In general, we believe judges’ recusal practices should be somewhat uniform – that two judges who have identical or equivalent financial arrangements and who have parties that are identical or equivalent appear in their courtroom will do the same thing when it comes to stepping aside (or not). In this regard, we back Gorsuch, Barrett and Kethledge.

To our chagrin, though, a three-judge panel on the Sixth Circuit wrote an opinion last year in which they held, in a case involving Ohio State where the presiding judge is on the OSU Law faculty, that recusal was “not required just because a judge serves as an adjunct professor at the law school of a party-university.”

In the opinion, the panel cited opinions from three “sister-circuits” who reached the same conclusion given similar facts.

They also cited a couple of government documents the contents of which have not been made public, namely, the Guide to Judiciary Policy, Vol. 2, Pt. B, “Ethics Advisory Opinions,” and Vol. 2, Ch. 3, “Compendium of Selected Opinions.”

Here is a letter sent today from Fix the Court to the Judicial Conference’s Codes of Conduct Committee asking that they make those documents public.

Our letter concludes: “Given the important role the public can play in surfacing and vetting potential conflicts, we believe all interested parties should have access to pertinent government-produced materials to assess the extent to which recusal in certain instances might be warranted. Transparency in this regard is a key factor in ensuring that justice is served and trust in the judicial branch is maintained.”

It’s clear to us that an unbiased and reasonable person who is aware of the relevant circumstances of a case captioned University of X v. Doe would expect a judge employed by the University of X Law School — and who, under federal law, may be earning up to $33,285 in that position — to step aside.

In spite of precedent from two judges now on the Supreme Court (three if you count Justice Jackson’s recusal in the Harvard affirmative action case, though that was for being on a board and not for teaching), several judges disagree.

The least they can do is show their work.