Mason, Matter of

• Decision Date: 17 October 1990
• Docket Number: No. 90-2736,90-2736
• Citation: 916 F.2d 384
• Parties: In the Matter of Bradford MASON, et al., Petitioners.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 384

916 F.2d 384

59 USLW 2265

In the Matter of Bradford MASON, et al., Petitioners.

No. 90-2736.

United States Court of Appeals Seventh Circuit.

Submitted Aug. 28, 1990.

Decided Oct. 17, 1990.

Stephen Laudig, Indianapolis, Ind., for petitioners.

Margo Barber, Marion County Legal Div., Yvonne W. Chisolm, Watkins & Lee, Indianapolis, Ind., for respondent.

Before COFFEY, FLAUM and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Canon 7(A)(1)(c) of the Code of Conduct for United States Judges provides that a judge should not "make a contribution to a political organization or candidate". Ongoing contributions, like other signs of partisanship, would detract from the appearance of impartiality that is important to the administration of justice. Many judges were involved in politics before taking the bench, however, and either held office themselves or helped others do so. Before Judge Tinder was appointed to the Southern District of Indiana in 1987 he made political contributions. Two of the beneficiaries are defendants in this suit, and the plaintiffs' lawyer is running for office against one of them. Plaintiffs asked Judge Tinder to step aside.

Plaintiffs maintain, in this suit under the Voting Rights Act, that precinct boundaries in Marion County, Indiana, have been manipulated to discriminate against black voters and candidates. Marion County is coextensive with the City of Indianapolis, and officials hold offices in each: for example, defendant William H. Hudnut, III, is both Mayor of Indianapolis and County Executive of Marion County. Judge Tinder gave $100 to Hudnut's 1983 campaign for reelection as mayor. He donated another $100 in 1986 to Faye I. Mowery's campaign for Marion County Clerk. Hudnut and Mowery are defendants in their official capacities only. Mowery is running for another term; Stephen Laudig, Mowery's opponent in the general election, represents the plaintiffs.

Judge Tinder referred to Chief Judge Brooks the question whether "his impartiality might reasonably be questioned", producing disqualification under 28 U.S.C. Sec. 455(a). Chief Judge Brooks concluded: "Absent a strong showing of personal prejudice, this Court does not feel a reasonable person would presume that a careful and seasoned trial judge was biased in this situation." After receiving Chief Judge Brooks' advice, Judge Tinder declined to recuse himself, observing that the contributions were nominal and that the suit does not seek to create personal liability. Plaintiffs now ask us to issue a writ of mandamus removing Judge Tinder, the only route by which claims under Sec. 455(a) may be reviewed in this circuit. United States v. Balistrieri, 779 F.2d 1191, 1204-05 (7th Cir.1985); In re National Union Fire Insurance Co., 839 F.2d 1226, 1227 (7th Cir.1988).

Section 455(a) asks whether a reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits. This is an objective inquiry. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 2205, 100 L.Ed.2d 855 (1988); New York City Housing Development Corp. v Hart, 796 F.2d 976 (7th Cir.1986); Pepsico, Inc. v. McMillen, 764 F.2d 458 (7th Cir.1985). An objective standard is essential when the question is how things appear to the well-informed, thoughtful observer rather than to a hypersensitive or unduly suspicious person. Because some people see goblins behind every tree, a subjective approach would approximate automatic disqualification. A reasonable observer is unconcerned about trivial risks; there is always some risk, a probability exceeding 0.0001%, that a judge will disregard the merits. Trivial risks are endemic, and if they were enough to require disqualification we would have a system of preemptory strikes and judge-shopping, which itself would imperil the perceived ability of the judicial system to decide cases without regard to persons. A thoughtful observer understands that putting disqualification in the hands of a party, whose real fear may be that the judge will apply rather than disregard the law, could introduce a bias into adjudication. Thus the search is for a risk substantially out of the ordinary.

An objective standard creates problems in implementation. Judges must imagine how a reasonable, well-informed observer of the judicial system would react. Yet the judge does not stand outside the system; as a dispenser rather than a recipient or observer of decisions, the judge understands how professional standards and the desire to preserve one's reputation often enforce the obligation to administer justice impartially, even when an observer might be suspicious. Judges asked to recuse themselves hesitate to impugn their own standards; judges sitting in review of others do not like to cast aspersions. Yet drawing all inferences favorable to the honesty and care of the judge whose conduct has been questioned could collapse the appearance of impropriety standard under Sec. 455(a) into a demand for proof of actual impropriety. So although the court tries to make an external reference to the reasonable person, it is essential to hold in mind that these outside observers are less inclined to credit judges' impartiality and mental discipline than the judiciary itself will be.

Notwithstanding this caution, we conclude that reasonable observers would not question Judge Tinder's ability and willingness to decide this case impartially. Before joining the bench, he supported the local candidates of the Republican Party. This cannot come as a big surprise to the plaintiffs, given the party holding the White House when Tinder became first the United States Attorney and then a judge. Politics plays a role in appointment to judicial office. Senators and other political figures who commend candidates to the President, like the members of the Executive Branch who add their favorites, rarely select either strangers or political adversaries. Merit selection of federal judges means selection by merit from among a group that rises to attention on other grounds--grounds not exclusively political, but often so. Harold W. Chase, Federal Judges: The Appointing Process (1972); Neil D. McFeeley, Appointment of Judges: The Johnson Presidency (1987). McFeeley concludes, id. at 85, that between half and four-fifths of all federal judges are involved in partisan politics before appointment: from the Eisenhower through the Reagan Administrations, the low was 48.4% (Johnson appointments to the district court) and the high 81.0% (Kennedy appointments).

Courts that have considered whether pre-judicial political activity is also prejudicial regularly conclude that it is not. E.g., Home Placement...