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Abortion Recusals Raise Questions About Reasons Judges Opt Out

Sept. 21, 2022, 8:45 AM

Welcome back to Opening Argument, a reported column where I dig into interesting legal disputes and questions of law. On tap today, a look at the recent judicial recusals in a battle over Indiana’s strict new abortion law.

Abortion providers filed a lawsuit at the end of August to block an Indiana law that bans nearly all abortions in the state.

Within eight days, two state court judges separately refused to be the one to hear it.

Neither judge gave an explanation for their recusal. Nor would their chambers discuss it when a Bloomberg Law reporter called last week to find out.

It’s why some judicial ethicists say more transparency is needed when it comes to judicial recusals.

“There should be something so we’re not just guessing,” said Amanda Frost, a University of Virginia School of Law professor who has testified before Congress on judicial ethics. “A comment on why they recused.”

There can be many reasons why a judge may decide to step aside in a case. They might have represented a party in the past, made public statements about the issue before they joined the bench, or have a financial interest in the outcome. Indiana’s judicial code says a judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned” even if none of the above apply.

Charles Geyh, an Indiana University Maurer School of Law professor, said “we all have one issue or another that makes us see red.”

But should judges be required to come clean about that?

Geyh’s not sure. Because judicial recusals have for far too long been treated as dirty laundry they want to hide, he said “offering a sentence explaining why you want to disqualify or at least referencing the section of the disqualification rule you’re using would be of some help.”

Nothing immediately stands out as a potential conflict in the judges’ professional backgrounds.

Judge Holly M. Harvey, who was first to recuse herself from the case on Sept. 2, is a Democrat who previously worked as a civil attorney handling a mix of evictions, divorces, and paternity disputes. She was also a volunteer attorney in juvenile court for children who are victims of abuse and neglect, and served on the council at her Catholic church, according to old campaign material from the Monroe County Democratic Party.

Judge Geoffrey J. Bradley, a Democrat who recused himself from the case on Sept. 8, prosecuted felony crimes for Monroe County before he was elected to the bench and oversaw juvenile and adult cases as a local assistant prosecutor in Ohio, a job that included facilitating child support enforcement.

It’s impossible to know if any of those experiences factored into their decisions, but Frost said the divisiveness of an issue shouldn’t be grounds for recusal since judges have an obligation to hear even those cases.

“Judges have to send people away for drug crimes and they may not agree with those statutes, and sentence them to mandatory minimums, or decide death penalty cases, or preside over child custody matters,” she said. “There’s lot of cases that are difficult to decide.”

Keith Fisher, a distinguished fellow at the National Judicial College, pointed out that the reason for the recusals may have nothing to do with the subject matter of the case. It’s possible one of the judges’ family members was involved in something similar or works for Planned Parenthood, he said. Fisher, who noted his views aren’t necessarily those of the National Judicial College, questioned why a judge should have to disclose if it’s a personal matter relating to a family member.

“Judges don’t give up their rights to have privacy when they assume the bench,” he said.

Know of a case or legal controversy that’s worth writing about? Email me at lwheeler@bloombergindustry.com. To read more Opening Argument, sign up for our newsletter The Brief. You’ll get Bloomberg Law’s top stories delivered free to your Inbox every weekday afternoon and you’ll catch this column when it runs.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com