Get A Job

The United States Court of Appeals for the District of Columbia Circuit vacated orders entered by a conflicted judge

Abd Al-Rahim Hussein Muhammed Al-Nashiri is currently detained at Guantanamo Bay, where he faces capital charges before a military commission. These petitions concern the conduct of Colonel Vance Spath, the military judge who presided over Al-Nashiri’s case for four years. Shortly into his tenure—and without disclosing it to Al-Nashiri and his lawyers—Spath applied for employment as an immigration judge in the U.S. Department of Justice. Then, after receiving a job offer but before retiring from the military, Spath found himself locked in a dispute with Al-Nashiri’s defense lawyers, three of whom sought to leave the case. Al-Nashiri now seeks a writ of mandamus vacating commission orders issued by Spath, while two of his former lawyers, Mary Spears and Rosa Eliades, seek a writ of mandamus vacating commission orders refusing to recognize their withdrawal. Because we conclude that Spath’s job application to the Justice Department created a disqualifying appearance of partiality, we grant Al-Nashiri’s petition for a writ of mandamus, vacate all orders issued by Spath after he applied for the job, and dismiss Spears and Eliades’s petition as moot.

The principle at play

Unbiased, impartial adjudicators are the cornerstone of any system of justice worthy of the label. And because “‘[d]eference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges,’” jurists must avoid even the appearance of partiality…

The principle that judges must preserve both the reality and appearance of impartiality finds expression in many sources of law. “It is axiomatic,” of course, that due process demands an unbiased adjudicator, and the Supreme Court has therefore identified several circumstances in which “‘the probability of actual bias on the part of the judge . . . is too high to be constitutionally tolerable.’”

The test

In asking what would cause a reasonable person to doubt a judge’s neutrality, we recognize the somewhat “subjective character of this ostensibly objective test.” Pepsico, Inc. v.
McMillen, 764 F.2d 458, 460 (7th Cir. 1985). That said, relying on section 455, judicial codes of conduct, precedent, and our own judgment as ethics-bound jurists to guide us, we conclude that, based on the totality of the circumstances, Judge Spath’s conduct falls squarely on the impermissible side of the line.

To begin with, it is beyond question that judges may not adjudicate cases involving their prospective employers. The risk, of course, is that an unscrupulous judge may be tempted to use favorable judicial decisions to improve his employment prospects—to get an application noticed, to secure an interview, and ultimately to receive an offer.

Steve Vladeck has an analysis of the case here. (Mike Frisch)