The Long-Discredited Challenge to the Impartiality of Minority Judges
Recent challenges to the impartiality of a federal judge based on the judge’s racial identity harken back to a period when accusations of this nature occurred with some frequency. This issue of race and judicial neutrality, and its ultimate resolution more than thirty years ago in a little known case, Pennsylvania v. Local Union 542, International Union of Operating Engineers, should be understood within historical context.
Beginning in the early 1970s, as the number of African Americans, Latinos, and women on the federal bench grew, challenges to the impartiality of minority judges were raised with disturbing frequency by white defendants in civil rights cases. African American judges, in particular, found themselves subjected to recusal petitions with alarming regularity.
A prime example is Pennsylvania v. Local Union 542, a 1974 race discrimination case brought by African American plaintiffs against a local contractors’ union. The formidable and brilliant jurist A. Leon Higginbotham presided over the case. The union sought to remove Judge Higginbotham from the case because he was African American and based its recusal motion on a speech given by the judge before African American historians. In particular, the union objected to Judge Higginbotham’s use of the word “we” when describing African Americans in his speech. The union charged that Judge Higginbotham’s “use of the pronoun ‘we’ evidences his intimate tie and emotional attachment to the advancement of black civil rights.” Judge Higginbotham’s denial of the recusal motion was accompanied by a detailed decision in which he rejected the claim that simply by virtue of being Black and being openly committed to the principle of equality and justice for racial minorities, he was disqualified from hearing discrimination cases. Judge Higginbotham explained that “white litigants are going to have to enjoy the new day in which the judiciary is not entirely white” and asserted the same right as white judges “[to] discuss matters of intellectual substance” free from charges of bias.
Just a year later, the first African American female federal judge, Constance Baker Motley, faced a similar motion in a gender discrimination suit brought by female associates against a major New York law firm. In seeking Judge Motley’s recusal, the law firm cited her career as a civil rights lawyer at the NAACP Legal Defense Fund and the fact that she was a woman. In a direct and oft-cited rejoinder, Judge Motley denied the motion and explained that if the defendant’s argument were accepted, no judge could hear the case, as all judges “were attorneys, of a sex, often with distinguished law firm or public interest backgrounds.”
Nearly a decade later, another African American federal judge, Gabrielle McDonald, faced a recusal motion in a case brought against the Ku Klux Klan in Texas. The Klan sought Judge McDonald’s recusal from the case in part on the grounds that “African Americans are prejudiced against the Ku Klux Klan.” Similar claims were brought against African American federal judges in other cases around the country. In each instance, these recusal motions failed, and the powerful opinions by the judges in these cases laid the foundation for the widely-accepted principle that a judge’s race or gender is not grounds for charges of judicial bias.
Nevertheless, in recent years, there have been occasional instances in which similar unsuccessful recusal motions have been filed, including one against Judge Michael Mukasey (who later served as Attorney General under President George W. Bush) when an accused terrorist attempted to cite the Judge’s Jewish faith as evidence of bias. Even where recusal motions are not filed, challenge by insinuation has from time-to-time resuscitated the odious charge that the minority status of a judge is a basis for questioning judicial impartiality. In 2010, speculation was stirred up around Judge Vaughn Walker’s decision striking down California’s law that limited marriage to opposite-sex couples. Anonymous sources suggested that Judge Walker’s sexual orientation made him biased against California’s law. No recusal motion was formally lodged in the case.
Overall, history teaches us that there are significant dangers to reviving these discredited attacks on judicial impartiality. As originally highlighted by Judge Higginbotham in the 1974 union discrimination case, such attacks reinforce the notion that whiteness and maleness are per se impartial and unbiased, whereas racial minorities and women are deemed as having built-in agendas or biases in favor of litigants of a similar race or gender. When a litigant makes such a charge (and nowadays, they rarely do) it undermines the legitimacy of minority and women judges. Such corrosive accusations also diminish our judicial system and the respect and integrity accorded to those who serve it. The rich history in which charges of judicial bias were met and fully debunked—especially by bold African American judges in the period when racial and gender diversity first came to our federal courts—should bring about an end to such speculation once and for all.
 Pennsylvania v. Local Union 542, International Union of Operating Engineers, 648 F.2d 922 (3rd Cir. 1981) (per curiam) (affirming several district court opinions).
 A full description of the recusal motion filed in this case and those discussed below can be found in my 1997 Boston College Law Review article “Judging the Judges” at pp. 114-118, available at http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1592&context=fac_pubs.
 Blank v. Sullivan & Cromwell, 418 F. Supp. 1 (S.D.N.Y. 1975).
 Vietnamese Fishermen’s Association v. Knights of the Klu Klux Klan, 543 F.Supp. 198 (S.D. Tex. 1982).
 U.S. v. El-Gababrowney, 844 F. Supp 955 (S.D.N.Y 1994).