Dan Froomkin has a great point on the next step in the Team Libby process:

If Judge Reggie B. Walton decides that Libby will not remain free pending his appeal, his defense team is expected to file an emergency motion with the D.C. Circuit Court of Appeals. That request would go to the three judges serving on a “special panel.”

Who would be on that panel? Given the highly political nature of the case — and the bench — that could be significant. But there’s no way to know. Mark Langer, the clerk of the appeals court, told me this morning that the court never divulges which judges are serving on the special panel until their order is issued.

Presumably at least one of the judges on the circuit — Brett Kavanaugh, who served in the White House with Libby — would have a clear conflict of interest. Langer said there is a recusal process that either automatically or voluntarily removes judges from the special panel.

This is done in federal courts everywhere — there is a standard procedure to be followed for recusal from a case where there are close ties or perceived conflicts of interest between a litigant, an attorney and/or a particular aspect of a matter before the court.

Whether it is followed to the letter and in keeping with the intent, however, is another question.  Readers will no doubt recall the kerfuffle regarding the Scalia/Cheney duck hunting trip, the ensuing debate, and the subsequent refusal of Justice Scalia to recuse himself from the energy task force case.  Some of those same issues may be brought up with regard to judges on the DC Circuit who have either worked for or with the Bush Administration, Dick Cheney, and I. Lewis Libby on various matters.

For a glimpse of how at least one judge on the DC Circuit who might be thought to have a conflict on this has walked through the recusal thought process, read this brief opinion from Judge Kavanaugh (PDF), who declines to recuse himself from a particular matter at bar.  (H/T to HowAppealing.)  Judge Kavanaugh places a lot of emphasis in this particular case on whether or not he was directly involved in litigation — and not so much on the appearance of impropriety or perceived conflict due to prior employment allegiance — but I caution as you read it, this is only a single case, and each and every case has to be considered on its own merits and facts independently.  It does, however, give us a good peek at some prior rationale from the judge. 

Here is a glimpse of his reasoning (PDF):

Section 455(b)(3) of Title 28 is the provision that of federal law that specifically addresses the recusal of federal judges who formerly served in government. The statue requires recusal when a judge “has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”…

A “proceeding” is defined to include “pretrial, trial, appellate review, or other stages of litigation.” 28 USC 455(d)(1)….As to prior government work, Congress was aware of the deeply rooted tradition of high-level Executive Branch and Legislative Branch officials assuming the bench. Based on that history and to avoid making it all but impossible for judges with such backgrounds to perform their judicial duties in many cases, Congress established the specific “personal-participation” rule in [Sec.] 455(b)(3). In determining whether recusal is appropriate or inappropriate based on prior government employment, judges must respect the line drawn by Congress.

To be sure, Congress could not forsee every conceivable recusal scenario that might occur. Therefore, rare and extraordinary circumstances arising out of prior government employment — but not covered or envisioned by [Sec.] 455(b)(3) — conceivably could occur and support recusal under [Sec.] 455(a). Even so, this case is not such an extraordinary situation.

It may or may not be indicative of the sort of reasoning we’ll see from him or others on the DC Circuit. He is correct that government service alone in a particular Administration is not enough to disqualify a judge from matters dealing with that Administration once s/he is appointed to the bench.  But close ties to particular people or policies do raise questions that need to be asked and answered about the need for recusal, or not, as the case may be.  

If and when an appeal from Judge Walton’s decision yesterday is filed by Team Libby (which I expect sooner rather than later), a specific panel of judges from the DC Circuit will be selected to hear the appeal, and we’ll see where things go from there.

For some further information on all of this, take a peek at the federal rules guidelines on recusal.  Section 455(a), referenced above by Judge Kavanaugh, reads as follows:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

The question in the Libby appeal, for a lot of the judges on the DC Circuit, will be from whose perspective they are viewing the potential for a conflict of interest – and what the meaning of ”reasonable” might be in the phrase “impartiality might reasonably be questioned” – with a high-ranking Bush Administration official and long-standing ties of a number of the folks on the bench to Republican party politics, and the enormous amount of pressure from the Free Scooter wing of the party trying to sway the public opinion of the GOP base to their side looming from the sidelines.   One of the lingering questions is the trickle-down effect on recusal considerations from the whole Scalia/Cheney duck hunting fiasco:  the Scalia refusal to recuse himself when there was a clear question of personal friendship considerations coming into play may or may not give other federal judges the excuse to stay on cases brought by or against friends — or it may be an object lesson in what not to do.  Jury is still out on that one.

In my experience, at least, most judges go out of their way to avoid even a hint of impropriety when a recusal is requested in good faith and where a question truly does exist, both to uphold their own reputation for fairness and honesty and to uphold that same sense of fairness in our nation’s system of justice. When a question is close for a past friend or former legal colleague, let’s say, most judges simply recuse themselves from consideration and pass the case on to colleagues who are not so personally tied to one litigant or another. We’ll see if that precedent is followed in the days to come.

This is certainly something that we will be following closely.

For more reading on the Libby case, the WaPo and the NYTimes have wrap-ups of yesterday.  And TBogg visits the Kidz in the Corner.   Via Crooks and Liars, the folks at Fox News say Cheney is working extra hard to force a pardon out of the President — nope, no self-interested reason for Cheney to do that at all here, no siree, just a loyal guy being loyal, no CYA for Cheney at all whatsoever.  Nothing to see here.  Ahem.  And just for giggles, PastorDan says that Barbara Comstock is on Mitt Romney’s “Faith and Values Steering Committee.”  Bwahahahahahahaha.

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