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What's a plaintiff in this town have to do to get a judge with no connection to Harvard?

Last October, Stephen Brussard sued Harvard in federal court in Boston, alleging he was fired as a maintenance worker for blowing the whistle on managers having other employees work on their homes.

The case was randomly assigned to US District Court Judge Patti Saris, who promptly recused herself because she lectures at Harvard Law School and her husband teaches at Harvard Business School.

The case - which Harvard has asked to be dismissed, in part because it says Brussard was technically a contractor, not an employee - was reassigned to Judge William Young.

Brussard's lawyer asked that Young recuse himself from the case as well, because he has some Harvard ties of his own: Young graduated from both Harvard College and Harvard Law School, he has taught classes at Harvard Law, has participated in its pro-bono legal program and is a member of the Harvard chapter of Phi Beta Kappa.

Although reticent to make this Motion, we recognize the importance of preserving the public's confidence in an independent judiciary and its judges. The appearance of bias can exist regardless of whether there is actual bias. There is no question that Judge Young is an exceptional jurist who deserves the tremendous respect he has garnered from the judiciary and the public.

In opposition, Harvard said Young hasn't taught at Harvard for more than 30 years. And it cites a ruling by the US Court of Appeals for the First Circuit in Boston that merely going to a school doesn't automatically require recusal by a judge in a case involving that school.

Naturally, this being Boston and Harvard being Harvard, that ruling, in 1982, also involved Harvard.

In that case, a man who claimed age discrimination when denied a job as a Harvard librarian, sued and lost, then appealed, arguing in part that the judge was not impartial because he had graduated from Harvard. The appeals court, however, rejected that argument, ruling "a reasonable suspicion of bias will usually arise only in the presence of such factors as a financial or strong personal interest in one of the litigants," and that simply having graduated from a school is not enough.

All judges come to the bench with a background of experiences, associations and viewpoints. This background alone is seldom sufficient in itself to provide a reasonable basis for recusal. ... A judge's sex and history of support for civil rights, for example, have been held insufficient to require disqualification in a case involving allegations of sex discrimination. ... The mere association of a judge with a party, without indication that the judge stands to obtain financial or other gain from a particular outcome, may similarly be insufficient to mandate disqualification. ...

Further, where the interest asserted bears only a tangential relationship to the subject matter of the suit, the alleged bias is even further attenuated. See, Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 754 (1973). This is certainly true here: an alumnus' interest in the general welfare of his alma mater hardly seems likely to manifest itself in a bias concerning a single staff employment decision.

This morning, Young denied the request to recuse himself from the case.

Brussard's complaint (1.4M PDF).
Harvard's response to the complaint (91.3k PDF).
Saris's recusal memo (21k PDF).
Brussard's case for Young to recuse himself (91.3k PDF).
Harvard's response to that request (33.6k PDF).

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Comments

I've never understood why recusing is done by the person themselves. Shouldn't a neutral third party *without* the conflict of interest motivating the recusal make the decision?

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Probably because the system relies heavily on the personal ethics and integrity of the judges themselves and many judges would be highly offended to suggest otherwise.

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Long story short:

Most judges with a reason to recuse will readily do so of their own accord, because it's a lot easier for a judge to have a case reassigned to another judge and move on with the other cases on your docket than to have a public fight about your personal integrity.

If someone asks a judge to recuse who hasn't done voluntarily it's usually a specious reason — as it is here — and it would probably take a few weeks to tee up the issue before another judge. If the judge is really out of line in failing to recuse, which happens very occasionally, you could get an appellate panel to step in.

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It would make interesting reading, regardless of his status as a contractor. I wonder who was using staff work on their homes. I've known of managers who did the same, charging the time to the company payroll.

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