There's a new wrinkle in a case I wrote about two weeks ago.
On April 30 I wrote "More States' Rights Madness from Another Progressive Bastion". That post addressed the fact that state prosecutors in Massachusetts had joined with public defenders and migrant rights groups to sue Immigration and Customs Enforcement (ICE) for making arrests of deportable aliens inside of state courtrooms.
I spoke to the fact that it was incomprehensible to me that the prosecutors had joined such a lawsuit, given that the only reason ICE agents have been forced to this recourse is because local police and sheriffs won't cooperate enough to permit them to take custody of the aliens in the safe confines of a jail or booking station because of myopic sanctuary policies.
I also noted the not-so-coincidental fact that this lawsuit was filed very shortly after a Massachusetts state judge and court security officer were indicted by a federal jury for obstruction of justice after whisking away a deportable alien criminal rather than permit an ICE agent access to him for purposes of assuming custody.
Finally, I noted that earlier in the year, ICE had been publicly excoriated by a federal judge appointed to the bench by Barack Obama.
Well, now guess who has been assigned to hear the case filed by those prosecutors. Yes, that same judge, one Indira Talwani.
One wonders whether this was really done according to Hoyle – for instance, in a round-robin of "you're next on the roster", or whatever the rules are governing case assignments in that district court – or whether someone involved in administration of that court put his thumb on the scales to be sure that the lawsuit would be heard by someone who has already made her antipathy toward the practice publicly known.
Even more incredibly, Law 360 (partially behind a paywall) has published an article, "ICE Criticism Shouldn't DQ [Disqualify] Judge In Courthouse Arrest Suit". Here's how the lead paragraph reads:
Criticizing U.S. Immigration and Customs Enforcement for showing up in her courtroom has landed U.S. District Judge Indira Talwani in murky waters as she now hears a suit challenging ICE courthouse arrests, but legal experts say she could still be impartial in the first-of-its-kind case. (Emphasis added.)
Really? In what parallel universe would this be true?
One of the key tenets of ethics for federal employees is to avoid conflicts of interests and even the appearance of conflict of interests. Item 14 in the code says this:
Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in this part. Whether particular circumstances create an appearance that the law or these standards have been violated shall be determined from the perspective of a reasonable person with knowledge of the relevant facts.
If this principle holds true for your average GS wage slave, how much more true should it be for members of the federal judiciary? Should they not be even more scrupulous?
Certainly they should, and the Code of Conduct for United States Judges makes this clear. Canon 3 asserts that "[a] Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently" and at 3(C) says specifically:
(C) Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned...
What person cognizant of Judge Talwani's prior remarks objecting to ICE courthouse arrests would not reasonably question her impartiality in the case before the bar?
If Judge Talwani is true to her ethical obligations, she will of her own volition recuse herself and throw the case back into the assignment pool for some other judge who has not made her (or his) feelings so unambiguously known to hear the case. If not, seems to me like it's a ready-made appeal for the defendants at ICE and their Justice Department lawyers.