Many married couples exemplify the adage “what’s mine is yours, and what’s yours is mine.” It’s an expression of generosity meaning that things belong to both parties equally and that they share everything with each other. But when one of the members of the marriage is a judge, should the expression “what’s mine is yours, and what’s yours is mine” apply to the non-judge spouses’ activities? Stated differently, at what point do the political activities of one spouse become a judicial recusal issue for the spouse sitting on the bench?
Smith v. BP Exploration
United States District Court Judge Vitter recently addressed this issue in dismissing a plaintiff’s claim of partiality based upon her spouses legislative and lobbying activities. See Smith v. BP Exploration & Production, Inc. et al, No. 2:2022cv00842 (EDLA 12/2/2022). The plaintiff’s case arose from the Deepwater Horizon oil spill in the Gulf of Mexico in 2010. The plaintiff alleged personal injuries and/or wrongful death due to exposure to oil or other chemicals used during the oil spill. In his motion to recuse, the plaintiff argued that Judge Vitter should be disqualified under 28 U.S.C. § 455 because her husband lobbying role as a member of Congress and his subsequent lobbying activities. The plaintiff pointed to the following activities as the basis for questioning Judge Vitter’s impartiality: that Judge Vitter had worked on her husband’s political campaigns while he was in office and before she took the bench; that Judge Vitter’s spouse, while serving in Congress, received campaign contributions from oil industry donors and adopted positions supportive of the oil and gas industry; and that Judge Vitter’s husband currently works for a law firm that represents oil industry clients. These activities, according to the plaintiff, gave rise to an appearance of impropriety in favor of the oil and gas industry and suggested that the Judge and her husband had a “significant financial interest in[the] petrochemical industry.” See id. at 4. The defendant, BP, opposed the motion.
Judge Vitter denied the plaintiff’s motion to recuse, finding that “a well-informed, thoughtful, and objective observer would not question the undersigned’s impartiality” so as to require recusal. See id. at 8. Citing the Guide to Judiciary Policy, Vol. 2B, Ch. 2, Advisory Opinion No. 107, Disqualification Based on Spouse’s Business Relationships, Judge Vitter concluded that a spouse’s “business relationship with an entity that appears in an unrelated proceeding before the judge usually does not require the judge’s recusal.” See Guide to Judiciary Policy, Vol. 2B, Ch. 2, Advisory Opinion No. 107, Disqualification Based on Spouse’s Business Relationships. Judge Vitter dismissed the plaintiff’s claims of impartiality as “too attenuated to be of concern” because her husband left his position in Congress nearly six years before and statements related to her husband and attributed to Judge Vitter had occurred over ten years before. Moreover, the judge characterized the plaintiff’s claims that contributions to her husband’s campaign and his legislative services from years before called for recusal as “arguably absurd.” Id. at 7. Finally, Judge Vitter noted that recusal was not required by her husband’s “of counsel” position with a law firm who neither represents BP or any oil industry clients in the Deepwater Horizon litigation.
Similar Scrutiny for Other Judges
Other judges have faced scrutiny based on the political activities of their spouse. Most notably, Supreme Court Justice Clarence Thomas continues to receive coverage in the news over his wife’s political activities and calls for recusal in cases about which she has lobbied. Ginni Thomas, Justice Thomas’s wife, is a conservative lobbyist and activist with ties to many issues and cases which may come before the Supreme Court. For example, Ginni Thomas is on the advisory board of the National Association of Scholars, a conservative group that filed an amicus brief in the landmark decision in which the court held that race-based affirmative action programs in college admissions processes violate the Equal Protection Clause of the Fourteenth Amendment. See Students for Fair Admissions v. Harvard, 600 U.S. ___ (2023). Unlike state and federal judges who are subject to many black and white ethics rules, the Supreme Court of the United is not bound by an official code of ethics. Some members of Congress, as well as the American Bar Association, have called for the Supreme Court to adopt an ethics code like the other branches of government. To date, the Supreme Court has yet to act and is instead staying in the gray ground of judicial ethics.
Statutes, caselaw, and judicial canons provide instruction to judges on when their own activities may require recusal from a particular case before them. Advisory opinions also instruct judges that they must recuse when their spouse has a direct and/or significant business relationship with a party, law firm, or lawyer appearing before the judge. These sources, however, fail to answer the following question: to what extent may the non-judge spouse engage in political, legislative or lobbying activities adjacent to an issue or case before the judicial spouse? And at what point can these activities form the basis for a successful motion to recuse? For now, the adage of “what’s yours is yours and what’s mine is mine” still reigns supreme.