The Eleventh Circuit’s method of flagging a conflict while withholding the identity of the conflicted judge leaves those involved in lawsuits guessing.
The “subject judge” in the Eleventh Circuit attended a partisan event hosted by a District Attorney. That participation would create a conflict of interest for any matters involving that District Attorney. The Memorandum devoted considerable attention to a potential issue with the boyfriend’s police department, yet it paid far less attention to a conflict involving the District Attorney.
The Eleventh Circuit’s choice to keep the reprimand private is perplexing in numerous respects. Perhaps the most troubling aspect is that the memorandum disclosed a clear conflict of interest, but stopped short of naming the judge who bore that conflict. How could a litigant with a case before the subject judge determine whether there was grounds for disqualification?
This is not a hypothetical concern. The United States filed suit against Brad Raffensperger, Georgia’s Secretary of State, seeking election records. The case was assigned to Judge Eleanor Ross. She apparently believed there was no conflict and continued to oversee the matter. Then again, given that this is a civil case, it seems unlikely that Judge Ross read any of the briefs or made substantive rulings. She may not even have known that the case had been assigned to her!
Now, the United States has sought to disqualify Judge Ross—sort of.
The United States respectfully requests that Judge Eleanor Ross recuse herself from the above-captioned matter. The Eleventh Circuit’s Judicial Council found that a “Subject Judge” engaged in judicial misconduct by attending a partisan and political event. That event reportedly honored Fulton County District Attorney Fani Willis, who gained nationwide notoriety for her unsuccessful prosecution of President Trump over alleged crimes connected to the 2020 election. Public reporting has identified the Subject Judge as Judge Ross. This purported misconduct necessitates Judge Ross’s recusal because, if Judge Ross is indeed the Subject Judge, it creates the appearance of bias. A judge who attended a gathering celebrating the election of a Democrat best known for prosecuting a Republican President for alleged election interference cannot then preside over a case concerning that President’s efforts to safeguard election integrity.
The Department of Justice cannot even say with certainty that Judge Ross is the conflicted judge. How could they? The Eleventh Circuit Council deprived the public of that essential information because Judge Ross insisted she was truly, truly sorry.
I’ve spent more time reflecting on this issue. The Memorandum from the Eleventh Circuit contained so many facts that it became obvious who the judge was. A friend suggested feeding the opinion into ChatGPT, and it named Ross within a second. None of these details were necessary to justify what was essentially a private reprimand. If the Council had left out the fact that interns began their work immediately after the party, or simply stated that an event honored an elected official (not a DA), it would have been far harder to pinpoint the facts. Is it possible that the judges on the Council deliberately included an abundance of identifying details to quietly signal who the judge was, without stating it outright? If true, this is not a development to celebrate. The statute calls for confidentiality in these proceedings, and that obligation cannot be sidestepped by a clever sprinkling of facts. Indeed, if I were Judge Ross, I would be furious. The Council chose to issue a private reprimand, and then released a report that effectively named her without a thorough, careful effort.
This whole situation stinks in many ways.
I hope Judge Ross will actually read DOJ’s brief and choose to recuse. Or she could do the honorable thing and resign. But her ally Fani Willis declined to step down and secured re-election. Perhaps that serves as a model for some.
