Michael W. McConnell, the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, has expressed reservations about an amicus brief filed in the Eleventh Circuit Court calling for the reassignment of Judge Aileen Cannon from the Trump classified documents case.
The amicus brief, filed by retired district court judge Nancy Gertner, ethics professor Stephen Gillers, and law professor James Sample, argues that Judge Cannon’s dismissal of the case should lead to her removal from presiding over the case if it is sent back to the district court on remand. However, Professor McConnell argues this suggestion lacks merit and could set a troubling precedent.
The amicus brief takes issue with several of Judge Cannon’s rulings in the case that they believe demonstrated bias in favor of Donald Trump, such as her decision to appoint a special master to review documents seized by the FBI. However, Professor McConnell notes that judicial rulings are often disagreed with and that disagreement alone does not constitute bias. Appellate courts review legal decisions, not choose trial judges.
Furthermore, Professor McConnell disagrees that Judge Cannon’s rulings fell outside the normal range of judicial disagreement. While some may have ultimately been incorrect, poor rulings alone are not grounds for removal. Removal usually only occurs if a judge defies remand instructions or shows outright hostility, which Professor McConnell does not believe Judge Cannon did.
Professor McConnell was surprised by the brief given its filers’ reputation. Nancy Gertner had a distinguished career as a district judge, and Professor Gillers and Professor Sample are leading legal ethics experts. However, in his view, suggesting removal for mere disagreement sets a troubling standard where judicial ethics complaints could be used as political weapons, causing appellate courts to improperly remove judges they second-guess.
Overall, while some may disagree with aspects of Judge Cannon’s handling of the case, Professor McConnell argues the amicus brief fails to establish any actual judicial bias and risks politicizing the courts if its standard is adopted.
Source: The Volokh Conspiracy
