As the lawyers representing Brian Flores and his co-plaintiffs (Ray Horton and Steve Wilks) work toward the deadline for submitting materials in opposition to the NFL’s effort to force the case to arbitration, there’s a question about the case that hasn’t been fully explored.
Should the presiding judge recuse herself?
Federal law mandates that a federal judge “shall” disqualify himself or herself “in any proceeding in which his impartiality might reasonably be questioned.” At a status conference that occurred in May, Judge Valerie E. Caproni made this statement in open court: “Just as full disclosure, as many of you may know, Ms. Lynch and I were [Assistant United States Attorneys] together in the U.S. Attorney’s Office in Brooklyn many years ago, and we dine together on occasion.”
Ms. Lynch is Loretta Lynch, lead counsel for the NFL in the case.
The Flores lawyers have not filed a motion to recuse Judge Caproni. They also have not tried, as best we can tell, to secure more information as to the full relationship between Caproni and Lynch.
The decision as to whether a motion to recuse should be pursued is a calculated risk. The judge has discretion. The judge may not appreciate the raising of the issue. The judge, if no motion is filed, ultimately may overcorrect (consciously or not) in an effort to ensure that there will be no accusation of bias.
The strategic decision not to pursue recusal in this case also may be influenced by the fact that Judge Caproni was appointed to the bench by Barack Obama. That’s always the first question lawyers ask when researching a federal judge, because whether the judge was appointed by a Republican or a Democratic president goes a long way toward revealing their broader philosophical approach to applying the law and resolving contested issues. Generally speaking, judges appointed by Republican presidents are good for business interests, and judges appointed by Democratic presidents are good for individual interests.
As to the matter currently pending before Judge Caproni, judges appointed by Republican presidents are more likely to enforce arbitration agreement, and judges appointed by Democratic presidents are more likely to find exceptions to them.
Thus, Judge Caproni’s relationship with Loretta Lynch quite possibly will take a back seat to a broader judicial viewpoint that positioned Judge Caproni to be appointed to the bench by a Democratic administration. By not filing a motion to recuse, the Flores lawyers are likely making that wager.
Especially since, if they file a motion to recuse and win, they could end up with a judge who was appointed by a Republican president.