By Kit Beyer, FTC law clerk

Fix the Court is working this month on a model recusal rule that we’ll soon be pitch to the American Bar Association in hopes that the organization amends their Model Code to reflect our work and recent revelations in the world of judicial ethics.

In the meantime, we want to sketch out some thoughts about preventing conflicts when a judge’s husband or wife is also, like the judge, a high-powered attorney.

No litigant in a federal court would want the spouse of their opposing counsel ruling on their case.

However, it’s a fact of life that judges and justices are often married to litigators — including other government officials — giving rise to potential conflicts of interest. 

Last month, President Trump tapped Chad Mizelle, the husband of the U.S. District Judge Kathryn Mizelle (M.D. Fla.), as the incoming chief of staff for his administration’s Justice Department. The Code of Conduct for U.S. Judges calls for judges to disqualify themselves from cases in which their spouse is a party, acting lawyer or otherwise has an interest that “could be substantially affected by the outcome of the proceeding.”

Judge Mizelle’s spouse, once he’s overseeing the DOJ, will presumably be interested in winning the cases that his department litigates; otherwise, he’d hardly be a promising candidate for the job.

The Code of Conduct would seem to require Judge Mizelle’s recusal in cases related to DOJ policies. Even if her spouse himself is not directly taking part in a particular case or personally involved with the policy at issue, his subordinates will include the men and women who are.

Judge Mizelle’s recusal from such matters, which will likely comprise a slim fraction of her docket, would project the appearance of impartiality and dispel legitimate concerns over the risk of bias.

Is it possible there is a certain subset of DOJ-involved cases that Chad Mizelle has zero involvement in that Judge Mizelle could sit on without a conflict risk? Maybe, but should such an arrangement be considered, the Mizelles and DOJ would do well to release it to the public before such cases end up in M.D. Fla., much like the justices did in this 1993 memo.

On the amicus front (and amici are rare in district court, so let’s presume Judge Mizelle moves up the chain to the Eleventh Circuit in short order), circuit courts have Rule 29(a)(2) of the Rules of Appellate Procedure, where a court “may prohibit the filing of or may strike an amicus brief that would result in a judge’s disqualification.”

Again, it’s unclear if this would prevent DOJ from ever filing amicus briefs in cases before a Circuit Judge Mizelle, but it’s worth considering before the inevitable elevation.

Moving to the Supreme Court, justices’ spouses may on a rare occasion have a substantial interest in the proceedings before it, whether as parties to a case or as amici.

Historically, the identity of amici has rarely compelled a justice’s recusal. But from an appearance-of-impropriety perspective, there’s at least one instance of late where an amicus was employing a justice’s spouse at the time he filed a SCOTUS brief. No recusal occurred, but the episode was given a great deal of ink by the media.

Whether or not this relationship was too attenuated as to require recusal, it should not have gotten to this point. The Supreme Court should adopt Rule 29(a)(2), and for the sake of transparency, it should also announce and explain each brief denial.

Explicit guidelines like these would enhance the integrity of the judicial process, giving all parties involved the assurance that their case will be impartially handled.