Should judges who sign recalls recuse themselves?

Judges shouldn't be restricted from participating in the democratic process

Should judges be allowed to sign recall petitions? If so, should their doing so play a part in whether their rulings should be taken seriously, or whether they should rule at all?

A recent news article highlights the phenomenon in detail, noting that 29 Wisconsin circuit judges have indeed signed the recall petition against Gov. Scott Walker. Excluding appellate judges and State Supreme Court justices (none of whom signed the petition), that amounts to about 12 percent of the state's judiciary.

Prior to this discovery, the issue of judges signing the recall was brought up in a different context. Judge David Flanagan, who issued a temporary injunction halting the voter ID law that Republicans had passed last year, had also signed a petition (which his wife had circulated). Critics of his ruling held that he had a conflict of interest in the case, that his signing the recall somehow inferred that he had a personal bias in making his decision.

The specific issue has since been somewhat resolved since another injunction by a separate judge (who HADN'T signed the recall) was released last week. Still, the question lingers: can a judge participate in a political action like a recall and remain impartial?

The answer depends upon what issue is at hand. When a judge makes it clear that his or her intent is to rule in a political manner, then it's obviously flawed. Flanagan, for example, had many problems within his own ruling (citing Supreme Court Justice "William" Scalia, for example, when it's really Antonin Scalia). Judge Niess, however, utilized clear case law, citing examples from over 180 years ago to the present to showcase why voter ID was intolerable in our state.

Recusal also depends upon what the issue at hand is. If the case has to deal specifically with the recall candidate in question, or has to do with the recall itself, the judge should probably recuse him- or herself. But an issue that doesn't directly deal with the person in question or doesn't have anything to do with the recall shouldn't require a judge to needlessly step aside.

Judges ruling on voter ID bills, for example, shouldn't have to recuse themselves on the basis of signing a recall because (A) the opinion they issue won't directly impact the recall itself, and (B) the decision will affect the recall candidate and the candidate's opponent equally.

Judges are held to higher standards because they are meant to look at the rule of law without bias. But judges are also citizens, and with that title they are granted the same rights that you and I are given. Judges must be able to discern when it is appropriate to play which role, and shouldn't play them both at the same time. But preventing a judge from having any input in the democratic process is itself an undemocratic restriction.