The elusive appearance of impropriety

Judges of both state and federal courts must step down from cases where they are presiding where there is even an "appearance of impropriety".

That is because the U.S. Supreme Court has ruled that, as a matter of federal due process of law, not only justice must be done in court cases, but appearance of justice must be done, too, to satisfy the public in the integrity of the court proceedings.

Yet, while the rule is declared that even "appearance of impropriety" is enough for the judge to step down, courts also introduced a mirror rule cancelling the constitutional requirement to judges to step down because of "appearance of impropriety" to ensure due process through both justice and appearance of justice in court proceedings.

The mirror rule is "discretion".  "Discretion", as interpreted and applied by most courts in the United States, both state and federal courts, is absolute and unrestricted power of a judge to do what he wants.

Judges of state and federal courts also have "discretion" (absolute power) to impose sanctions upon litigants and their attorneys for "frivolous conduct", which is defined so vaguely and applied so selectively against the "mere mortal" parties and attorneys and privileged and politically connected parties and attorneys that it appears to be a tool targeted for retaliation of certain individuals for voicing certain political opinions rather than a rule established as part of the "rule of law".

So, on the one side we have "appearance of impropriety", constitutional rights of litigants to impartial judicial review, due process, justice and appearance of justice, and, on the other hand, all of the is swept away by the rules of "discretion", "discretion" not to step down, "discretion" to impose sanctions for motions for recuse, "discretion" for raising constitutional arguments and any other arguments that the judge simply does not like, whether they are legitimate and lawful or not.

Appellate courts routinely rule that failure to recuse and imposition of sanctions for making motions to recuse is not "abuse of discretion".  Appellate courts also routinely rule that failure to make a motion to recuse (even for fear of these "discretionary" sanctions) is a waiver of a right to raise issues of judicial bias.

The "discretion" not to recuse and to sanction for motions to recuse is given by the courts to themselves because courts presume upon themselves integrity - even while giving themselves absolute judicial immunity for malicious and corrupt acts on the bench.  

Of course, to a reasonable person all of that is nonsense and corruption, but try saying that in the court pleadings - you will be sanctioned thousands of dollars and, if you are an attorney, you may end up without your law license, since in America the very same government misconduct of which lawyers are supposed to challenge on behalf of their clients is regulating the lawyers' licenses and livelihoods.

Such control by the government of independence of court representatives has been pronounced a human rights violation and undemocratic in such parts of the world as Iran, but remains in full force in the United States of America.

Because of the "rules of discretion", the rule requiring that judges step down from cases because of "appearance of impropriety" is interpreted so broadly that nothing at all, no glaring conflict of interest, can be or is considered improper for a judge to preside over a case.

Cases interpreting "appearance of impropriety" are read like a combination of George Orwell's "1984" and the Diagnostic Manual of Mental Health Disorders.  In other words, they are simply crazy for a normal person to read.  What a reasonable person clearly would see as an appearance of impropriety, judges, after no less than "consulting their own conscience", consider proper - and consider it proper to punish the challenger who raised the issue of impropriety in the first place, and appellate courts do not see anything wrong in that, and affirm, cutting off any possibility for people for further effective legal remedies for the clear wrongs dealt to them by the government, through a member of its judicial branch.

What I suggest is that rules allowing judges' "discretion" to recuse or not to recuse, or to punish for anything at all, including motions to recuse, should be legislatively abolished, judges should be legislatively prohibited to impose sanctions for making motions to recuse, and judicial immunity (illegal and unconstitutional that it is) should be at the very least legislatively stripped from the judges for imposing sanctions when a motion to recuse is made, allowing victims of such sanctions to sue the judge for that particular retaliation.

That would be at least the first good step forward to prevent chilling litigants from raising legitimate issues in litigation and protecting their legitimate rights.