About That Recusal List ...

The following paragraph leaped out at me as I was reading United States District Court Judge Robert N. Chatigny's questionnaire submitted on behalf of his nomination to a seat on the Second Circuit.

"Under our Court's automatic recusal system, the Clerk's Office maintains a list of persons and entities whose involvement in a case triggers my recusal without action on my part. The list, which I update regularly, consists of entities in which I have a financial interest requiring automatic disqualification, as well as clients I represented in private practice and certain lawyers, including members of my former law law firm," the judge wrote on page 22 of his 32-page response.

Many years ago, several of my cases were transferred from Judge Chatigny's docket "in the interests of justice." Since then, I've had no case assigned to him. I've never complained about that. And I am not complaining now.

But I was struck by reference to the "Court's automatic recusal system" and the notion that "certain lawyers" are on the list. I wanted to find out who else was on Judge Chatigny's banishment list. So I had a staff member call the court to request a copy. We were informed this morning that the list is not open to the public. Our Freedom of Information Act request will leave the office this afternoon.

I've often wondered why judges get the right to decide based which lawyers cases they will not preside over and why a similar right is not extended to lawyers: Shouldn't the door swing both ways? Don't lawyers also have the sense that there are some judges with whom they'd rather not deal? And doesn't that compromise a lawyer's effectiveness?

Of course, that would result in forum shopping, you say. Yes, I suppose it would. But when you leave to the forum a unilateral, secret and unreviewable right to decide whether to hear a case, something is wrong.


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