In 2007, the Jewish Federation of Detroit bestowed its highest honor on Judge Paul Borman, a longtime leader in the Jewish community who worked as a federal prosecutor and a law professor and worked hard to improve relations between the Jewish and African-American and Arab-American communities before being nominated by President Clinton in 1994 to be a federal judge. This year, Judge Borman became the latest in a series of Jewish judges who have been asked to recuse themselves because of their personal identity. Judge Borman was assigned the case of Rasmea Odeh, a Palestinian who was accused of lying on her U.S. naturalization papers and covering up the fact that she had been convicted in an Israeli court of playing a role in two bombings. She admitted this was the case but turned down a plea deal with the goal of proving that she should not be deported because she had been mistreated in an Israeli prison and had PTSD when she filled out the naturalization forms. Her case became a cause celebre with dozens of activist groups calling for her not to be deported.
Wanting to avoid Judge Borman, the defense counsel filed a motion that went through Borman’s record as a Jewish leader, even citing his 2007 award from the federation as evidence that Borman could not be impartial in the case. The motion went so far as to argue that he had “personal extra-judicial knowledge” about the case because of his trips to Israel.
As protesters descended on the courthouse, Judge Borman delivered an opinion that was a resounding defense of his freedom to serve as an active member of the Jewish community and as an impartial judge. There is nothing special about being a Jewish jurist he noted, stating that “Like every one of my colleagues on the bench, I have a history and a heritage, but neither interferes with my ability to administer impartial justice.” Borman noted that when he assumed the bench he took an oath to “faithfully and impartially discharge and perform all the duties incumbent upon me … under the Constitution and laws of the United States” and his leadership in the Jewish community did not curtail his ability to uphold his oath.
While Odeh’s lawyers tried to claim that this was about his pro-Israel activity, not his Jewish faith, it was impossible to separate the two. Odeh’s lawyer cited how the Jewish Federation had labeled him a “builder of Israel” to mean that he was literally building the Israeli state, “apparently unaware that the term dates from the biblical Book of Ruth.” While Zionism is not universal to all American Jews, Borman did define his Jewish faith as including a commitment to Zionism, and his pro-Israel activism was an extension of his commitment to the Jewish people.
Sadly, this was not the first time that a federal judge has been asked to step aside from a case because of their leadership in the Jewish community. In 1994, then-Judge Michael Mukasey was asked to recuse himself in a case stemming from the bombing of the World Trade Center in 1993. Mukasey refused to recuse himself and warned that there was a larger matter of justice at stake; the demand for his recusal would “disqualify not only an obscure district judge such as the author of this opinion, but also Justices Brandeis and Frankfurter … each having been both a Jew and a Zionist.” The case was about the guilt of the accused, and the jury “will have no occasion to approve or disapprove the views of Jews or Zionists, or the detractors of either or both.”
Mukasey told me in an interview that he refused to answer the lawyer’s questions about his and his wife’s relationship to Israel because a judge should answer only questions “relevant to the outcome, not merely to satisfy someone’s curiosity.” While Mukasey respected that the defendant’s lawyers were good lawyers “in the sense there was more in it than just defense; they were generally sympathetic to cases involving issues like that,” he did tell me that “their argument, more broadly, was one that I thought was dangerous.”
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In building their arguments, both Judges Mukasey and Borman relied on the famous case of an African-American judge who had refused to recuse himself from a case involving racial discrimination against African-Americans. Judge A. Leon Higginbotham was an African-American district judge in Philadelphia appointed by Lyndon Johnson. He had overcome a lot of discrimination in his life and even on his first day at the court a guard yelled out, “Hey, boy” and told him that only judges could park in his spot. The incident was “typical” for what happened in those days, he said.
In 1974, Higginbotham was asked to recuse himself from a case involving racial discrimination on the grounds that he was African-American. He issued an order rejecting the recusal request that became an “inspiration” to later judges, including Mukasey. He warned against recusals rooted in the judge’s identity: “[T]he absolute consequence and thrust of [movants’] rationale would amount to, in practice, a double standard within the federal judiciary.” If a Judge could be forced to step aside from a case merely because of their membership in a group that was the subject of discrimination, minorities would constantly be removed from cases.
Judge Higginbotham’s opinion became a major rallying point for African-American jurists as they encountered calls for them to recuse themselves in civil rights case. As Dahlia Lithwick has noted, during the 1970s “a bumper crop of minority federal district judges appointed by President Jimmy Carter presided over employment-discrimination cases brought under Title VII of the Civil Rights Act of 1964 [and] recusal motions were filed by defendants seeking to remove black judges from hearing these case.” The African-American judges refused to recuse themselves. In one of the most infamous incidents, the white-shoe law firm of Sullivan and Cromwell sought to have Judge Constance Baker Motley removed from a case because she was African-American, a woman and a former NAACP lawyer. She made her rejection of the request not particular to her but more universal; were she to recuse then “no judge on this court could hear this case, or many others” based on their personal characteristics.
The canonical opinion by Judge Higginbotham has become the backbone of the judiciary’s refusal to step aside in cases where their religion, ethnicity or, most recently, sexual orientation was questioned. Professor Erwin Chemerinsky, a noted constitutional scholar and the Dean of U.C. Irvine Law School, told me that the opinion was “absolutely right” because “a judge should not be disqualified based on sex or religion or race or ethnicity or sexual orientation without more as the basis for disqualification.” The law is that a judge should recuse himself “in any proceeding in which his impartiality might reasonably be questioned,” but does a judge’s identity degrade their impartiality?
The dangers of that path are clear. As Chemerinsky asked, “Can a woman judge of reproductive age hear a case on abortion laws? Can a parent with minor daughters hear challenges to state laws requiring parental notice and consent for abortions? Can African-American judges hear challenges to ‘driving while black policies’?” These possibilities, he warns, are “endless” once that door is opened. Judges have been asked to step down from a case for everything from being Mormon to being gay, and if we accept that identity interferes with objectivity, we invite endless investigation into the personal background of the judge.
While Judge Higginbotham’s opinion became an inspiration to later judges, he was originally inspired by Jewish jurists who used their position on the bench to serve as leaders in the Jewish community. He was “pleased to see that my distinguished colleagues on the bench who are Jewish serve on committees of the Jewish Community Relations Council, on the boards of Jewish publications, and are active in other affairs of the Jewish community.” He said that he “respect[ed] them, for they recognize that the American experience has often been marred by pervasive anti-Semitism. I would think less of them if they felt that they had to repudiate their heritage in order to be impartial judges.” For Higginbotham, there was a solidarity between the Jewish and African-American judges who used the bench as a platform to pursue social justice.
Judges have generally rejected calls for recusals based on their identity. Judge Michael McConnell, formerly the chief judge on the 10th Circuit Court of Appeals and now a professor at Stanford Law School, told me, “In general, unless the organization the judge worked with is itself involved, there is not a strong case for recusal, and even then it is dubious.” Judges are selected based on their ability to make impartial decisions in tough cases and to analyze the law irrespective of personal beliefs. This is rooted in what Chief Judge Kozinski of the Ninth Circuit Court of Appeals has called the “common law notion that an integral part of the judge’s job is to set aside whatever personal interests and biases he might have” and to “summon the intellectual fortitude to rise above personal considerations and decide cases impartially on the merits.”
The reality is that our judiciary is a representation of our vibrant and diverse culture. “Judges are people too. Every judge comes to the bench with some type of personal background, in terms of race, ethnicity, gender, sexual orientation, or religion,” David Lat, the editor-in-chief of Above the Law told me. “It would be unreasonable and unworkable,” he continued, “to expect judges to recuse in any case implicating personal background.”
Yet there is a twist to the Borman story that, depending on how you view it, either testifies to the judge’s personal integrity or undercuts the power of his original rejection of the recusal petition. After delivering his opinion stating that he would not recuse himself from the Odeh case based on his leadership in the Jewish community, Judge Borman received a translation of the Israeli indictment so he could examine the facts underlying Odeh’s conviction in Israel. He learned that Odeh had been convicted for her role in the 1969 bombing of a Jerusalem grocery store, SuperSol, during the busy shopping hours before Shabbat. The bombing killed Leon Kaner and Edward Jaffe, roommates at Hebrew University, and injured nine others. At the time of the bombing, Borman’s family had a “passive financial interest” in the SuperSol grocery store through their work in the grocery industry. The “financial interest” did not exist at present but the perception that a judge’s family was financially invested in the business that was attacked certainly changed the situation, in Borman’s mind. He now felt that his “impartiality might be reasonably questioned” and decided to step down from the case.
Today, the trial of Rasmea Odeh is proceeding in the Eastern District of Michigan with a different judge. While Judge Borman may not have the case, his effort to resist the recusal is a testament to the fact that Jewish judges need not “repudiate their heritage in order to be impartial judges”—a call that is likely to grow louder as American courts become forums for cases brought against foreign banks and other entities for facilitating acts of violence by Islamist terror organizations that target the Jewish state.
*Editor’s note: An earlier version of this article misidentified the 1993 attack on the World Trade Center, in which six people were killed, as an “attempted” bombing.
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Sam Kleiner is a fellow at the Yale Law Information Society Project.
Sam Kleiner is a fellow at the Yale Law Information Society Project.
