This month, two judges who have served together as colleagues on the U.S. Court of Appeals for the Fifth Circuit for more than twenty-five years are to be married. When Fifth Circuit Chief Judge Carolyn Dineen King marries Senior Fifth Circuit Judge Thomas M. Reavley, they will become the first married couple ever to serve together on a federal appellate court.

At a time when acrimony between judicial colleagues receives far more attention than judges who are able to work cooperatively and develop affection for one another, it is refreshing to see that love can be found and can flourish behind the large velvet curtain that divides the public portion of a courtroom from the part that is open only to judges and their employees.

While I have nothing but good wishes to extend to this about-to-be-married couple, the question arises whether a husband and wife who work as judges on the same federal appellate court should be permitted to serve together on the same three-judge panel or en banc court. This question appears to have no easy answer.

By tradition, judges who serve on appellate courts recuse when they are confronted with an appeal from a ruling issued by a trial judge who is a close family member. Accordingly, U.S. Supreme Court Justice Stephen G. Breyer appears to recuse from participating in any review of cases on which his brother, U.S. District Judge Charles R. Breyer of the Northern District of California, has ruled. Fourth Circuit Judge Diana Gribbon Motz appears to recuse from reviewing cases that have been pending before her husband, U.S. District Judge J. Frederick Motz of the District of Maryland. And the Fifth Circuit in October 2003 held that a federal district judge should have recused from ruling on a case in which the magistrate judge who issued a report and recommendation was the district judge’s spouse.

But while it seems clearly established that spouses and brothers should not review one another's rulings where they serve at different levels of the hierarchical federal court structure, it is less clear whether spouses or brothers should refrain from serving together on the same appellate court panels.

The U.S. Congress in 1998 passed a law providing that "No person may be appointed to the position of judge of a court exercising judicial power under article III of the United States Constitution (other than the Supreme Court) who is related by affinity or consanguinity within the degree of first cousin to any judge who is a member of the same court." While it may be disputed whether Congress has the authority to limit in this matter how the President of the United States exercises the power to appoint Article III judges, certainly the U.S. Senate can refuse to confirm for a lifetime appointment any nominees who run afoul of the statute.

Yet for the past twelve years, two brothers -- Richard S. Arnold and Morris S. Arnold -- have served together on the U.S. Court of Appeals for the Eighth Circuit, and they have sat on the same three-judge panels many times and have heard cases together when that court has sat en banc.

Some accused President Bill Clinton of taking the lyrics to Paul Simon's song "Mother and Child Reunion" too literally when he nominated William A. Fletcher to join the Ninth Circuit, where his mother Betty Binns Fletcher was already serving as a judge. Republicans in the U.S. Senate refused to confirm the son unless the mother promised to take senior status, which she did. The two Fletchers do not appear to have heard any cases together during the son’s nearly six years of service on that court.

Although it is impossible to predict whether the Fifth Circuit's newly married couple will continue to hear and decide cases by serving together on the same three-judge panels, they have continued to hear cases together after they became engaged to be married. Indeed, in July 2004 those two judges found themselves in disagreement over a case involving whether an inmate assigned to sleep in a constantly illuminated prison cell stated a valid claim for cruel and unusual punishment due to the sleep deprivation the lighting caused. At least their majority and dissenting opinions did not exchange any barbs over whether loud snoring in the bedroom can also constitute cruel and unusual punishment.

Section 455 of Title 28 of the United States Code requires a federal judge to recuse from matters in which "He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person" is either a party, "acting as a lawyer in the proceeding," or "[i]s known by the judge to have an interest that could be substantially affected by the outcome of the proceeding."

Presumably the rationale is that where a close family member is acting as an attorney in the proceeding, a judge might be tempted to rule on an improper basis because a family member's record of success in court may help or hinder that attorney's career.

It is far less clear why closely-related federal judges who serve at different levels of the judiciary should not review one another's rulings. For example, District Judge Charles R. Breyer will not be assigned a better quality of cases if the U.S. Supreme Court, on which his brother serves, constantly sides with his rulings. District Judge Motz would continue to be assigned the same sort of cases, and be paid the same salary, even if the Fourth Circuit, on which his wife serves, were never to reverse another of his rulings. Nor will the magistrate judge based in Texas be assigned better cases because his or her spouse, serving as a federal district court judge, constantly accepts the magistrate judge's reports and recommendations instead of rejecting them.

Thus, the rationale behind the unwritten policy that closely-related federal judges serving at different levels of the judiciary should not review one another's rulings must be based instead on a concern that they would favor upholding their relative's rulings not to advance the relative's career, but simply because they were members of the same family. Regardless of whether this concern has merit, the question arises whether a similar sort of concern applies to related judges serving together on the same appellate court.

The current practice, in which closely-related federal judges are free to serve together on appellate panels but are prohibited from reviewing each other's decisions at different levels of the judicial hierarchy, does not appear to me to be based on any sensible distinction. In fact, the current approach seems to be based on a belief that closely-related judges serving together on the same court are more likely to feel free to disagree with one another's view of a single case than closely-related judges serving on different levels of the judiciary.

That belief, however, is not persuasive. A single appellate judge's view of a case will lack the force of law unless he or she can attract enough support from other judges hearing the case to constitute a majority. The process of deciding cases on appeal does not always consist of a dispassionate, simultaneous exchange of views between appellate judges. Rather, often it consists of lobbying between judges in an effort to convince colleagues that one proposed disposition of the case is preferable to another. If a judge should not be deciding whether to affirm a ruling of a closely-related family member, why should another judge be permitted to decide whether the position favored by a closely-related family member serving on the same court will garner majority support?

I do not find the tradition that prohibits closely-related family members from ruling on the same case at different levels of the hierarchical federal judicial system to be particularly persuasive, but that tradition seems well-entrenched and thus unlikely to change. If that tradition is worth upholding, then it would seem to follow that closely-related judges should not sit together to decide the same cases on appeal.

This article is reprinted with permission from the August 9, 2004, issue of The Legal Intelligencer © 2004 NLP IP Company.