Eugene Volokh's Blog, page 296

[Jonathan H. Adler] Justice Kagan's Ninth Circuit Judicial Conference Remarks

[Thanks to C-Span, video is now available.]

Last week, I noted Justice Elena Kagan's remarks at the Ninth Circuit Judicial Conference on Supreme Court ethics, her reaction to losing cases, and other matters. The remarks prompted substantial press coverage and commentary. Now you can view those remarks for yourself, as C-Span has posted video.

The post Justice Kagan's Ninth Circuit Judicial Conference Remarks appeared first on Reason.com.

[Josh Blackman] What Would It Mean For Lower Federal Court Judges To Enforce A Code Of Conduct Against Supreme Court Justices?

[Does Justice Kagan really want Chief Judge Kimberly Moore to give Justice Thomas the Pauline Newman treatment?]

When Justice Kagan speaks to the Ninth Circuit judicial conference, after cutting through all the pleasantries and bromides, her primary objective is to give the left a to-do list. She doesn't sob in her office. She punches through walls. This year, Kagan casually floated an idea that has taken shape: Justice John Roberts could appoint some panel of "judges lower down the food chain" to review allegations of misconduct.

As a threshold matter, she threw Justice Thomas under his RV, and raised Justice Alito up his flagpole. Not even a year after the Court adopted an ethics code–which was part of Kagan's earlier wish-list–Kagan is already saying that the rules are not enough. There have to be teeth!

I'll repeat a few points I've made more times than I can count. Ethics codes are not bright-line rules. They merely offer guidance to judges about how to proceed. All federal judges, even the Justices, can request informal advice from their colleagues, or judges on other courts. Though not binding, judges tend to do what others have done. Judicial ethics body have only very limited tools to enforce ethics codes. These institutions can issue private and public reprimands. In extreme cases, they can refer a judge for impeachment. At that point, it is up to Congress to act. But the ultimate death sentence is to prevent a judge from being a judge.

Take the Federal Circuit. The well-respected judges of that court have removed Judge Pauline Newman from hearing any cases until she submits to a health exam with the doctor of their choice. Newman filed a valiant legal challenge, but has lost in the District Court, and her hope now lies in the D.C. Circuit. Moreover, the Federal Circuit recently excommunicated her for another year. Newman is 97 years young. Chief Judge Kimberly Moore and her colleagues are probably waiting for Judge Newman to die. This is a stealth impeachment, and the other federal judges have done nothing about it. They are too busy trying to punish litigants in Texas for filing cases where the venue statutes permit them to file. (There is action afoot in the rules committee–stay tuned.) Anyway, I digress.

These are the things that lower court judges can do to enforce ethics codes. Does Justice Kagan really want to empower the likes of Judge Moore and others to suspend Supreme Court Justices from hearing cases? Or allow some inferior panel to force a Justice to recuse from a particular case? Will there now be entire rounds of litigation before these panels immediately after a cert grant?

The Wall Street Journal editorial board raises some other questions:

Could her panel issue subpoenas to investigate allegations? How would it sanction Justices who enjoy life tenure? Wouldn't setting up such a system encourage frivolous complaints, filed for partisan PR purposes or to make the process into the punishment?

Once this process exists, there will be thousands upon thousands of frivolous complaints. Look at the thousand "orchestrated" complaints filed against Judge Aileen Cannon–so many that Chief Judge Pryor ordered the clerk's office to stop accepting them! And this is only one district court judge. Imagine what will happen for Justices Thomas and Alito. There will be at least one judge somewhere who finds one of these complaints meritorious. Who will be the first Justice to get the Pauline Newman treatment? Did Kagan really think this suggestion through a policy matter?

I haven't even addressed the separation of powers problems: inferior judges sitting in judgment of apex officials. No way this flies.

At the end of the day, all of these calls for "judicial reform" are addressing a problem that barely exists, and mandate solutions that would cause substantial harm to the judiciary. Judge Jim Ho frames the issue well in his new National Review essay:

The double standards aren't an accident. They're intentional. They're a strategy to create a perverse incentive structure for judges: If you rule the way the critics dictate, you won't be criticized. You'll be fêted. But if you don't, you'll be ostracized.

That's why the double standards don't seem to trouble the critics. Because, to the critics, this isn't a debate — it's a war. The critics don't want neutrality. They want conformity. If you don't conform, they'll call you corrupt, unethical, racist, sexist, homophobic. They'll say you're just trolling, or auditioning. Whatever it takes for you to bend the knee. And even if you still won't conform, they'll attack you anyway, because others will get the message and comply.

Critics have repeatedly said that they want to pack the Court. But there's no need for them to pack the Court if they can just pressure the Court to do what they want.

I don't think Justice Kagan sees things in quite this light, but her proposals gives ammunition to those who do.

I regret that Justice Kagan started down this road. Given that President Biden will soon announce his own Court reform, this issue is on the wall. Once the filibuster is abolished–as Senator Elizabeth Warren has promised–I suspect the Court will be placed under this regime. My other predictions from four years ago may yet come to fruition.

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[Eugene Volokh] No Sealing of Goldman Sachs Employees' Names in Securities Fraud Lawsuit

From Magistrate Judge Katharine Parker (S.D.N.Y.) Thursday in Ap-Fonden v. Goldman Sachs Group, Inc.:

This securities fraud litigation, filed in 2018 arises out of the 1Malaysia Development Berhad ("1MDB") scandal. Plaintiffs were investors in Defendant the Goldman Sachs Group Inc. ("Goldman"). The parties have moved to seal materials submitted in connection with Plaintiff's motion for class certification….

As a preliminary matter, documents submitted in support of a motion for class certification are judicial documents to which the presumption of public access [to court records] would apply….

In support of its application to maintain certain documents under seal, and to allow for the filing of other exhibits with redactions, Goldman notes that it seeks to redact individuals' names and other personal identifying information of current and former Goldman employees as well as two entities and individuals unaffiliated with Goldman. Goldman states that none of those employees or entities were implicated in any of the alleged wrongdoing at the center of this case. Therefore, Goldman states, "it would be patently unfair and highly prejudicial to these individuals to disclose [their] names."

While redactions of names and personal information of non-parties is occasionally permitted in this district, particularly at the class certification phase, Plaintiffs dispute whether the underlying nonparties are actually implicated in the 1MDB Fraud. In fact, among the names redacted in Goldman's submissions is Lloyd Blankfein, Goldman's then-chairman, and who's statements about 1MDB are specifically at issue in the motion for class certification. Similarly, Plaintiff alleges that some of the names Goldman seeks to redact include individuals who testified publicly at the trial of Roger Ng (one of the architects of the 1MDB fraud.)

In any event, Goldman does not contend that its employees or their titles are nonpublic. Therefore, while they might maintain a privacy interest in having personal details such as phone numbers, email addresses, or actual addresses, they do not have a similar privacy interest in the fact of their employment at Goldman during the relevant period.

Even if Goldman kept the names of its employees confidential, which it does not, the allegation that unsealing the documents would be "unfair" and "prejudicial" to the individuals named therein is no more than "broad allegations of harm unsubstantiated by specific examples or articulated reasoning." At the very least, it is not detailed enough for this Court to make the "specific, on the record findings" that sealing here is necessary to serve higher values….

The post appeared first on Reason.com.

[Josh Blackman] JD Vance on Justice Scalia in 2014

["He's become a very shrill old man. I used to really like him, and I used to believe all of his stuff about judicial minimalism was sincere. Now I see it as a political charade."]

One of the rites of passage of becoming a prominent conservative politician is that your former friends disclose private correspondences to the mainstream media. And so it has come to pass for JD Vance. One of Vance's YLS classmates gave the New York Times more than 90 emails and text messages from 2014-17. Some of the passages reflect on the Supreme Court:

In 2014, they were both near the beginning of their careers, about a year out of law school.

Mr. Vance shared that he was planning to buy a house in Washington, D.C., with his wife, Usha, whom he also met at Yale.

The Vances could afford a house in Washington's highly priced market partly because Mr. Vance was starting a job in Big Law. "Blech," he wrote then, indicating his distaste for a career he had already decided against. He would remain with the white-shoe firm Sidley Austin for less than two years.

In the same exchange, Mr. Vance also wrote about his wife's interviews with justices of the Supreme Court, where she was seeking a clerkship. Mr. Vance worried that her seeming politically neutral, or lack of "ideological chops," could harm her chances.

"Scalia and Kagan moved very quickly," Mr. Vance wrote, referring to Antonin Scalia, the conservative justice who died in 2016, and Elena Kagan, one of the court's current three liberal justices, "but she was just not going to work out for Scalia."

Nelson wrote back, "His homophobic screeds are hard to believe in 2014."

"He's become a very shrill old man," Mr. Vance responded. "I used to really like him, and I used to believe all of his stuff about judicial minimalism was sincere. Now I see it as a political charade."

Mrs. Vance would end up clerking for Chief Justice John G. Roberts Jr.

Wow. There is a lot to unpack here.

First, it is well known that Vance has done a 180 on Trump. He used to speak of Trump in the harshest terms, but has now come to become one of Trump's most ardent defenders. I think it would have been expected for a Yale conservative* to be critical of Trump before 2016. But Vance's criticism of Justice Scalia was a different matter altogether. This email came in 2014, the year after Justice Scalia's Windsor dissent. This is almost certainly what Vance's friend referred to as "homophobic screeds."

Windsor was one of Scalia's last, great dissents. Here is the intro:

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court's errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

Justice Scalia was the scion of the conservative legal movement. At times he drove all of us nuts, but we would never say he was engaged in a "political charade." If you were to take a poll of Federalist Society members in 2014, how many would attack Scalia with such language?  I suspect it is a vey small number. Indeed, I'm not even sure that Vance was ever a FedSoc member. I graduated law school only a few years before him. I first learned of him when Hillbilly Elegy burst onto the scene. I remember being surprised to learn he was a recent YLS grad, since I had never heard of him. I am far more troubled by Vance's criticism of Scalia than anything he ever said about Trump.

Second, Vance provides some unwitting insights into the clerkship game. He describes Usha Chilukuri, his future wife, as politically neutral, and lacking "ideological chops." At Yale, a Supreme Court clerkship is considered something of a birthright–the only question is which justice will hire them. That the same candidate was even considering applying to both Justice Kagan and Justice Scalia (of "homophobic screed" fame) suggests that she was willing to appeal to both sides of the spectrum. Scalia was known to hire counter-clerks, but Usha does not strike me as counter-clerk material.

Third, Vance provides some even more unwitting insights into the types of judges who ultimately hired a really smart law clerk who lacks "ideological chops": Amul Thapar on the Eastern District of Kentucky, Brett Kavanaugh on the D.C. Circuit, and Chief Justice Roberts on the Supreme Court. In 2014, these were judges who did not impose any sort of FedSoc litmus test on their hiring, and were known to hire clerks from both sides of the spectrum. And so they did with Usha.

***

It is always precarious to judge a person by things they did in their youth. People can grow from setbacks in their past. Indeed, I think much of the blowback of my post on Kamala Harris's bar failure missed the point. I noted at the end some other very prominent people failed the bar, and went onto great success. I've also written about Joe Biden's law school plagiarism, Elena Kagan's mediocre 1L grades, and the fact that Mitt Romney never even took the bar!

How then to explain these comments from Vance only a year after he graduated from the most elite institution. Was he just telling a liberal friend the standard liberal party line? Did he truly did not understand what Justice Scalia was doing–perhaps owing to his deficient legal education from a left-wing faculty? Did he never seek out any opportunities to learn about Scalia from FedSoc events, or otherwise? Or did he really believe what he wrote about Justice Scalia? If so, did he ever stop holding those views? And what kind of judges would Vance recommend for the courts? I'd like to hear some answers to these questions.

The post JD Vance on Justice Scalia in 2014 appeared first on Reason.com.

[Eugene Volokh] "Two Men Plead Guilty to Acting as Illegal Agents of the PRC Government and Bribery"

From Thursday's press release by the Justice Department (see also the Indictment itself):

JOHN CHEN and LIN FENG pled guilty to acting as unregistered agents of the government of the People's Republic of China ("PRC") and bribing an Internal Revenue Service ("IRS") agent in connection with a plot to target U.S.-based practitioners of Falun Gong—a spiritual practice banned in the PRC….

According to Indictment and other court documents:

From at least approximately January 2023 to May 2023, CHEN and FENG worked inside the United States at the direction of the PRC Government, including an identified PRC Government official ("PRC Official-1"), to further the PRC Government's campaign to repress and harass Falun Gong practitioners. The PRC Government has designated the Falun Gong as one of the "Five Poisons," or one of the top five threats to its rule. In China, Falun Gong adherents face a range of repressive and punitive measures from the PRC Government, including imprisonment.

As part of the PRC Government's campaign against the Falun Gong, CHEN and FENG engaged in a PRC Government-directed scheme to manipulate the IRS's Whistleblower Program in an effort to strip the tax-exempt status of an entity run and maintained by Falun Gong practitioners ("Entity-1"). After CHEN filed a defective whistleblower complaint with the IRS (the "Chen Whistleblower Complaint"), CHEN and FENG paid $5,000 in cash bribes, and promised to pay substantially more, to a purported IRS agent who was, in fact, an undercover officer ("Agent-1") in exchange for Agent-1's assistance in advancing the complaint. Neither CHEN nor FENG notified the Attorney General that they were acting as agents of the PRC Government in the United States.

In the course of the scheme, CHEN, on a recorded call, explicitly noted that the purpose of paying these bribes, which were directed and funded by the PRC Government, was to carry out the PRC Government's aim of "toppl[ing] … the Falun Gong." During a call intercepted pursuant to a judicially authorized wiretap, CHEN and FENG discussed receiving "direction" on the bribery scheme from PRC Official-1, deleting instructions received from PRC Official-1 in order to evade detection, and "alert[ing]" and "sound[ing] the alarm" to PRC Official-1 if CHEN and FENG's meetings to bribe Agent-1 did not go as planned. CHEN and FENG also discussed that PRC Official-1 was the PRC Government official "in charge" of the bribery scheme targeting the Falun Gong.

As part of this scheme, CHEN and FENG met with Agent-1 in Newburgh, New York, on May 14, 2023. During the meeting, CHEN gave Agent-1 a $1,000 cash bribe as an initial, partial bribe payment. CHEN further offered to pay Agent-1 a total of $50,000 for opening an audit of Entity-1, as well as 60% of any whistleblower award from the IRS if the Chen Whistleblower Complaint were successful. On May 18, 2023, FENG paid Agent-1 a $4,000 cash bribe at John F. Kennedy International Airport as an additional partial bribe payment in furtherance of the scheme….

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[Josh Blackman] Today in Supreme Court History: July 28, 1880

7/28/1880: San Francisco prohibits operation of laundires in wood buildings, "without having first obtained the consent of the board of supervisors." The Supreme Court found this ordinance unconstitutional in Yick Wo v. Hopkins (1886).

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[Samuel Bray] The Constitution as an Allocation of Competences

It [i.e., the Supreme Court] must look to the Constitution, be it with a large or small C, written or unwritten (or both), for it is the constitution of a society which represents the fundamental allocation of competences within that society. It is in its constitution that a society comes to terms with the homely truth that every decision must finally be taken on the managerial, prudential, particularistic judgment of somebody, and yet very few decisions indeed may be left to the judgment of everybody at once. It is in the constitution that a society recognizes that everyone is in principle capable of the Olympian view, and yet in fact most persons will differ when they take it. The Constitution, in short, is a necessary, prudential arrangement for the allocation of competences to take a prudential view. And a court, no less than anyone else, will fail to respect the prudence of the Constitution, if it ignores the limitations on its own scope for making prudential judgments.

Charles Fried, Two Concepts of Interests: Some Reflections on the Supreme Court's Balancing Test, 76 Harv. L. Rev. 755, 772 (1963).

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[Ilya Somin] J.D. Vance, Taxing the Childless, and the Power of Framing

[The controversy over Vance's advocacy of higher tax rates for childless adults illustrates the power of framing.]

J.D. Vance at the Republican National Convention (Tom Williams/CQ Roll Call/Newscom)

 

I am, to understate the point, no fan of Republican VP candidate J.D. Vance and the "national conservative" ideology he espouses. But much of the backlash generated by his 2021 statement that childless adults should pay higher tax rates is  a matter of framing. It highlights how people can have widely divergent reactions to similar policy proposals, depending on how they are described.

Many are forgetting that the childless already pay higher taxes than parents with the same incomes.  Under current law, most parents are entitled to the child tax credit. My wife and I have two kids, and we claim it whenever eligible to do so (under current law, whenever our household income is under $400,000). When we take the credit, we end up paying less in taxes than would a childless couple with the same income.

The child tax credit enjoys broad bipartisan support. Many Democrats argue it should actually be bigger. Why is it so popular? Because it's framed as giving parents lower tax rates, rather than making childless people pay higher ones. Described in those terms, almost everyone loves it!

On the other hand, when Vance says childless people should pay higher tax rates and takes swipes at "childless cat ladies," he comes off like an intolerant, misogynist creep, and many people hate him. Maybe that's exactly what he deserves; I'm not shedding any tears for him. But most of the same people are happy to support much the same policy if it's described in different terms.

Lower tax rates for parents and higher ones for childless adults are two sides of the same coin. One unavoidably implies the other. The different reactions to the two descriptions are the result of a "framing effect:" where views on policy ideas are driven by wording rather than substance.

In a world where voters are highly knowledgeable about policy and carefully evaluate alternative ideas, framing effects wouldn't matter much. But, in reality, most voters are rationally ignorant about policy, and often do a poor job of evaluating the information they do get. For that reason, framing effects often have a big impact.

If I were advising Vance (don't worry, it's never going to happen!), I would tell him to stop talking about cat ladies, and instead say something like this:

"I want to give a bigger tax break to America's hard-pressed parents, so they can better provide for their  children. Parents and kids need a break from heavy taxes and high prices. After all, children are our future!" Maybe combine it with an ad in which Vance appears with a group of mothers and kisses some babies.

Is  the child tax credit actually a good idea? Should we increase it? I'm far from certain.  But framed in these positive terms (as tax relief for parents, rather than as forcing the childless to pay higher taxes), it sure sounds good to most people.

One can tell a similar story about Vance's advocacy of giving extra votes to parents. He described it as  forcing childless people to "face the consequences and the reality" and not get "nearly the same voice" in our democracy. That sounds awful and predictably generates negative reactions. But the same idea can also be described as providing greater voice for children's interests by allowing parents to represent them more effectively. Indeed, that is precisely how extra-votes-for-parents has been defended by left-liberal advocates, such as Harvard political scientist Paul Peterson, and political commentator Michael Kinsley (Peterson would give parents the option of letting the kids cast the vote themselves if the parents believe their children are up to it).

They didn't frame the idea as penalizing the childless, but rather as giving greater clout to children's interests. But, as with relative tax rates, the two are just different ways of describing the same thing. Since political influence is a zero-sum game, giving more votes to Group A necessarily reduces the proportional electoral weight of B, C, and D.

I am not convinced parents should get extra votes for their children. On the other hand, I have tentatively defended the idea of letting knowledgeable children (those with political knowledge levels at least as great as that of the average adult voter)  cast votes for themselves. I think that would improve the quality of political decision-making at the margin. But I have to acknowledge it would reduce the political power of adult voters. Still, I don't frame it that way when I argue for it.

I came up with this idea before I had kids of my own. But my nine-year-old is now a big fan of it!

Here, my point is not to defend any particular voting scheme, but to highlight the framing effects. Peterson, Kinsley, and others didn't get as much backlash as Vance, in large part because they described the same idea in more positive terms: as increased voice for parents and children, rather than as decreasing the power of the childless.

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[Eugene Volokh] Judge in N.Y. Trump Fraud Civil Case Refuses to Recuse

From Thursday's decision in People v. Trump, by N.Y. trial judge Arthur Engoron:

This action, familiarity with which the Court assumes, arises out of a years-long investigation that plaintiff, the Office of the Attorney General of the State of New York ("OAG"), conducted into certain business practices that defendants engaged in from 2011 through 2021. OAG alleged that the individual and entity defendants committed repeated and persistent fraud by preparing, certifying, and submitting to lenders and insurers false and misleading financial statements, thereby violating New York Executive Law § 63(12).

In a Decision and Order dated September 26, 2023, this Court granted plaintiff summary judgment only on liability and only on the first cause of action.

On February 16, 2024, following a three-month trial, this Court issued a Decision and Order After Non-Jury Trial finding defendants liable on the remaining six causes of action. The Court ordered certain injunctive relief, including the continuation of the Hon. Barbara Jones (ret.) as an Independent Monitor of the Trump Organization, which obligates the Court to maintain jurisdiction over this action despite the trial's conclusion.

On May 8, 2024, NBC New York reported that Adam Leitman Bailey, Esq., a lawyer with no connection to this case, boasted that several weeks before I issued the Decision and Order After Non-Jury Trial, he "approached the judge presiding over Donald Trump's civil fraud case to offer unsolicited advice about the law at issue in the case."

On July 11, 2024, this Court so-ordered, in part, defendants' subpoena to Bailey, directing him to disclose any documents or communications in his possession that involve, discuss, or in any way refer to this action.

Defendants now move, pursuant to 22 New York Administrative Code § 100.3(E)(1), for me to recuse myself, or, in the alternative, for an evidentiary hearing before another justice on the communications and their potential impact on the Court's decision.

The Unsolicited Ex-Parte Communication

Sometime in or about February of this year, several weeks before I issued the Post-Trial Decision and Order, at the end of the business day, I left my robing room in the courthouse at 60 Centre Street and rode an elevator down to the main floor. There, on the outskirts of the famous rotunda, Bailey accosted and started haranguing me about Executive Law § 63(12). He did not relay any alleged facts.

{Of course, the irony here is that defendants, whose position Bailey was ostensibly promoting, is moving for me to recuse myself, and plaintiff, whose position Bailey was ostensibly controverting, opposes the motion. This suggests that defendants are not motivated by ethical concerns but, rather, seek an opportunity to reverse the trajectory and outcome of this case.}

Prior to that time, I considered Bailey a professional acquaintance and a distant friend. His sudden appearance and vehement speech took me aback, and I simply told him that he was wrong. He trailed after me, still droning on, as I descended the Judge's stairs to the street level. I entered my vehicle without saying another word (except, perhaps, "goodbye") and departed.

For approximately three and a half years prior to this unpleasant occurrence, starting in September 2020, I had researched § 63(12) intensely and had issued many rulings, including preliminary injunction and summary judgment decisions, based on it. I certainly did not need a landlord-tenant lawyer ranting about it. I did not initiate, welcome, encourage, engage in, or learn from, much less enjoy, Bailey's tirade. I did not base any part of any of my rulings on it, as Bailey has outlandishly, mistakenly, and defamatorily claimed. The entire 90-second incident, after three and a half years of studying and being immersed in § 63(12), was, to use the vernacular, a "nothingburger." I would have forgotten all about it by now had Bailey not attempted to burnish his reputation as someone who could influence judges (which would be unethical, and possibly illegal, but of which Bailey nonetheless publicly boasts).

Due to extensive news coverage of the subject trial, passersby often recognize and confront me on the street, at parties, in parks, in restaurants, and on public transportation. Sometimes their unsolicited words are complimentary. Sometimes they are derogatory. Never do they affect my rulings. As with my forced encounter with Bailey, I feel no need to report these fleeting incidents.

Defendants purport to rely on the rule that a judge may consult an expert only under certain conditions. I did not consult Bailey, and I certainly do not consider him an expert on Executive Law § 63(12)….

Defendants' Arguments

In support of their motion, defendants cite to an array of opinion editorials and blogs (from The Wall Street Journal OpEd, National Review, Newsmax, New York Post, YouTube videos, and The Volokh Conspiracy) critiquing this Court's legal rulings, which defendants collectively use as "evidence" that "this Court's final judgment has certainly imperiled public confidence in the integrity of the New York legal system." As this Court has already detailed in a prior order denying defendants request for a mistrial, "editorial opinions that denounce plaintiff's case … are irrelevant and of no evidentiary value."

Further, the cases defendants cite in support of recusal do not advance their cause.

Defendants purport to rely on Matter of George (N.Y. 2013), to support their claim that the conduct alleged here is "antithetical to the role of a judge." There, the judge presided over a matter in which he had close personal, professional, and financial ties to a party, without disclosing the relationship. As with each case defendants cite on recusal, the facts are wholly distinguishable from these herein.

Defendants also purport to rely on Matter of Levine (N.Y. 1989), in which the judge adjourned proceedings in favor of one party, and "by his conduct … conveyed the impression in an ex-parte communication that his rulings would not be based on merit but on his allegiance and loyalty to [a] former political leader." Here, the Court based its rulings on the law and the facts, not politics, and nothing in Bailey's ill-advised statements to the media indicate otherwise.

Defendants also cite to Matter of Ayres (N.Y. 2017), in which the presiding judge repeatedly initiated ex-parte conversations in an attempt to influence a favorable disposition of his daughter's traffic ticket. I did not initiate the encounter, I did not converse, and neither I nor any of my family members have a personal interest in this case.

In People v Lester (N.Y. Just. Ct. 2002), the judge received an ex-parte communication at his home from a party to the proceeding.

In Matter of VonerHeide (N.Y. 1988), the judge routinely sought out and interviewed witnesses outside of court and ruled based on their unsworn communications.

Defendants' reliance on Matter of Fuchsberg (N.Y. Jud. Ct. 1978), is misplaced, as in that case the judge presided over a matter in which he had an undisclosed financial interest, and in which the Judge consulted with law professor colleagues on at least 12 cases pending before him.

In Matter of Murphy (N.Y. 1993), the judge was "careles[s] in handling public moneys" deposited into Court….

In sum, all of defendants' cases are manifestly distinguishable, simply inapposite, or denied recusal.

Finally, defendants emphasize their claim that "this Court, based on public reporting, is also now apparently under investigation by the Commission on Judicial Conduct." However, the Commission has not contacted me, nor I am aware of any such investigation. An unsubstantiated allegation of an investigation cannot require disqualification.

Discussion

"It is settled that 'absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal.'"

As no grounds for mandatory recusal exist here, it is up to me and my conscience to determine whether this 90-second, unsolicited diatribe about a law with which I was fully familiar and in which I was fully immersed, by a non-party and non-expert who conveyed no facts, in any way affected my adjudication of a dispute over which I had presided for three and a half years, during which time I had already issued several dispositive decisions. I hereby definitively state that it did not.

Directly on point, the Advisory Committee on Judicial Ethics has opined that a judge is not ethically obligated to disclose an attempted ex-parte communication from a non-party who alleges no relevant facts, but merely expresses a view as to how a matter should be decided, and which is not considered by the judge. Advisory Opinion 98-144, available at https://www.nycourts.gov/ipjudicialet...

Additionally, "[n]o judge may recuse based upon wrongful acts allegedly committed by some other person." R&R Capital LLC v Meritt (N.Y. Sup. Ct. 2008) (stating "[b]ecause this Court holds no bias for or against any party to this dispute, but has expressed in our determination of the issues put before us who shall be the prevailing side, there is no basis upon which recusal may be granted"). Accordingly, recusal based on the sole actions of Bailey, which did not influence my decisions, is unwarranted.

Moreover,

[W]hen there is no ground for recusal, recusal should not be ordered, especially when prejudice will result. Indeed, "'[a] judge has an obligation not to recuse himself or herself, even if sued in connection with his or her duties, unless he or she is satisfied that he or she is unable to serve with complete impartiality, in fact or appearance.'"

I have been presiding over this action, and the special proceeding that preceded it, for over three and a half years. The two dockets have a combined 2,624 separate entries. I have reviewed tens of thousands of documents in camera (and out), throughout extensive disclosure, motion practice, and the trial. To recuse myself now would result in immense prejudice to the parties, the public, and the judicial process.

I am supremely confident in my ability to continue to serve, as I always have, impartially.

Alternative Relief Sought

As an alternative to recusal, defendants request an evidentiary hearing, before another justice of the Court, "on the veracity of Mr. Bailey's allegations and the Court's and [the Office of Court Administration's] denial." In support of their request, defendants cite to a string of cases that, by defendants' own description, have "held that an attorney accused of professional misconduct must have an opportunity to confront the witnesses and subject them to cross-examination." However, such a rule would give standing only to Bailey, who is accused of wrongdoing, to confront witnesses against him in an inquiry into his alleged professional misconduct. These cases do nothing to advance the relief defendants seek herein….

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[Josh Blackman] Today in Supreme Court History: July 27, 1929

7/27/1929: The Geneva Conventions are signed by United States. The Supreme Court would consider the Conventions in Hamdan v. Rumsfeld (2006).

The Roberts Court (2006)

 

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