You seldom see a federal judge grant a motion for recusal.  And an appellate court that reverses denial of such a motion shares much with a unicorn.

Today an Eighth Circuit panel split 2-1 in overturning a district judge's refusal to step aside.  The judge's errors in imposing a death penalty sanction for discovery abuse, together with intemperate comments from the bench, created the appearance of partiality, the court held.  Reversing the sanction, the court ordered reassignment of the case on remand.  Sentis Group, Inc. v. Shell Oil Co., No. 07-2308 (8th Cir. Mar. 24, 2009).

The majority opinion didn't recite all of the statements that the judge himself characterized as "mere expressions of frustration at the course of discovery in this case."  The remarks it did mention strike Blawgletter as not so bad.  The judge said "hell, yes" and "goddamn" twice in a hearing and, in total, "directed profanities at Plaintiffs or Plaintiffs' counsel over fifteen times."  Id. at 26.  But what seems to have troubled the majority most consisted in the emotion the judge's words and actions seemed to betray.

Perhaps to soothe the feelings of a colleague, the majority laid blame on the parties, which it said "provoked the district court into making untempered comments, using profane language, and taking actions that created an appearance of partiality."  Id. at 2.  While not condoning the plaintiffs' evasive "behavior or tactics", the majority said, "it seems clear that at some point in the proceedings, Defendants' goal shifted from conducting effective discovery to fanning the flames of the court's frustration and building a case for sanctions."  Id.  The defendants put so much into the effort that they "made an hour-long PowerPoint presentation", which the majority implied so bestirred the judge that he lapsed into something like a rage.  Id. at 12-14.

The dissent cited the general rule that an appearance of partiality, for purposes of recusal, must arise from "extrajudicial" matters (things that arise outside of court proceedings) or from displays of "a deep-seated favoritism or antagonism that would make fair judgment impossible."  Id. at 29 (Gruender, J., dissenting) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).

Anybody who has practiced more than a few years has encountered an angry judge.  The anger makes clear thinking and error-free deciding far more difficult.  Ire — whether smoldering or flaming — thus endangers fairness.  We commend the majority on reaching a difficult but probably right conclusion.  Dispassionately.