From How Appealing:
According to an opinion issued today, the paint manufacturer “Sherwin-Williams argues that a law review article co-written by Judge Adelman creates an appearance that the judge will decide the case other than on the merits.”
Today’s ruling, by a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, disagrees and finds that recusal of the trial judge is not merited for having written a law review article about a state court ruling that may control the outcome of issues in a case now pending before that judge.
And from the opinion:
The decision in Thomas was much maligned, and so were four other 2005 decisions of the court. In response to this criticism, Judge Adelman co-authored an article praising the Wisconsin Supreme Court’s use of its judicial power. Lynn Adelman & Shelley Fite, Exercising Judicial Power: A Response to the Wisconsin Supreme Court’s Critics, 91 Marq. L. Rev. 425 (2007). Judge Adelman’s article reviewed the five cases and defended the rulings as appropriate exercises of the high court’s judicial power, given the unique role the state constitution assigns the court in overseeing the administration of justice. Id. He explicitly disclaimed any opinion on the merits of any of the cases. Id. at 428. Judge Adelman did comment that, to the extent the facts in Thomas suggested that the plaintiff could otherwise have no recovery from a pigment manufacturer, he thought it was a “positive development” for the court to ensure that “the doors of the courthouse remained open.” Id. at 446.
Section 455(a) provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualifyhimself in any proceeding in which his impartiality might reasonably be questioned.” In evaluating whether a judge’s impartiality might reasonably be questioned, our inquiry is “from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.” Cheney v. United States Dist. Court, 541 U.S. 913, 924 (2004) (Scalia, J., in chambers) (citation omitted).
Sherwin-Williams contends that a reasonable observer could conclude from Judge Adelman’s article that he believes that Thomas was correctly decided and that he therefore will not consider Sherwin-Williams’s attacks on Thomas fairly. As suggested in our earlier characterization of the article, we do not think that a reasonable person, having actually read the article, would think that Judge Adelman had expressed any view as to the merits in Thomas in arguing that it and the other decisions fell within the Wisconsin high court’s authority. But the bigger failing in this contention is that, as Judge Adelman noted in denying the motion for recusal, his views of Thomas, to the extent he has any, are irrelevant. Because these are diversity cases, Judge Adelman is obligated to follow state law, as interpreted by thestate supreme court. State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 669 (7th Cir. 2001) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 80 (1938)). He cannot revisit the holding in Thomas, not even if he were persuaded that Sherwin-Williams’s objections are meritorious. See Rennert v. Great Dane Ltd. P’ship, 543 F.3d 914, 917 (7th Cir. 2008). A reasonable person would understand this and would appreciate that Judge Adelman’s impartiality in these cases is in no way called into question by anything he may have said about the merits of Thomas.
Does the sole fact that he published an article warrant recusal? Nope.
Sherwin-Williams also argues that the mere fact that Judge Adelman published an article that defends, in some fashion, a ruling that was favorable to certain leadpaint plaintiffs would make a reasonable person suspect that Judge Adelman has an unusual interest in assisting such plaintiffs—i.e., that he has an ax to grind. But someone who was aware of the controversy regarding the limits of the Wisconsin Supreme Court’s power and knew that federal judges may speak, write, and participate in other activities concerning the legal issues of the day, see Code of Conduct for United States Judges, Canon 4A(1), would find nothing unseemly about Judge Adelman publishing a law review article on the topic. Sherwin-Williams suggests that this scenario is analogous to cases in which recusal has been ordered because of a district judge’s comments to the media or at conferences, but in each of those decisions the commented-upon-case was pending before the district . . . Canon 3(A)(6) generally discourages public comments about the merits of pending cases, and such comments may understandably raise questions about a judge’s impartiality in the case over which he or she is presiding. But those concerns are not implicated here because Thomas is not before Judge Adelman and never has been.
This is indeed good to know.
It is worth noting this opinion came out of the 7th Circuit, the home of Judge Posner, who has authored more law review articles and books than any other attorney alive. Certainly that court could not set a precedent that found that simply writing a law review article could force recusal.