Legal ethics experts say U.S. District Judge Neil Wake’s background doesn’t disqualify him from hearing the pending lawsuit filed on behalf of Arizona Republicans who say the process was unfair.
But a Democratic lawyer has questioned Wake’s impartiality, saying his past “definitely causes some concern.”
Republicans in the recent filing say that Arizona’s redistricting commission favored Democrats in drawing district boundaries that will be used in elections for the next 10 years. The GOP plaintiffs have asked that the panel draw interim districts for use in the Aug. 28 primary and Nov. 6 general election. The case is pending in federal court before a three-judge panel, which includes Wake.
The stakes are high for both parties. The configurations affect voter demographics in a given district, playing a key role in election outcomes.
Democratic attorney Michael Mandell said that Wake’s participation is worrisome because the judge will be “reviewing an issue in which he was a litigant the last time around, and he was very entrenched in the litigation.”
Wake apparently has been a good judge “but the concern still exists,” Mandell said.
Wake, a Republican, did not respond to a request for comment. He became a judge in 2004 after being nominated by former President George W. Bush.
While in private practice, Wake represented Arizonans for Fair and Legal Redistricting, a Republican group that helped defend the last redistricting commission’s map of legislative districts when it was challenged by Democrats.
Stephen Gillers, a law professor at New York University School of Law, said federal rules don’t disqualify a judge who previously represented a client in a case that involved similar issues — “and certainly not after a decade has passed.”
Charles Geyh, associate dean at Indiana University’s law school, said judges should not be disqualified from deciding cases comparable to those they handled as lawyers.
Geyh said judges should disqualify themselves when their impartiality could be questioned. But he said the standard for such exclusions is high because most judges were practicing attorneys before taking the bench.
Geyh said that when a lawyer represents a client, “it doesn’t mean you are embracing their point of view, their way of looking at the world and are therefore biased in their favor.”
He added, though, that this case is different from most others because it is “so charged with partisanship.”
Geyh said the judicial confirmation process is intended to weed out nominees who can’t put political leanings aside. But he said the system in place troubles him because judges themselves decide whether they can be impartial in a given case.
“It’s like grading your own paper,” he said.
A 9th U.S. Circuit Court of Appeals spokesman said the Arizona federal court is one of the busiest in the country and that Wake was selected for valid reasons.
“He was chosen based on his availability,” said David Madden, assistant circuit executive. “His prior experience as a litigator in an earlier redistricting case was not a factor in the appointment.”
Mary O’Grady, a lawyer for the redistricting commission and a former top assistant to Democrat Terry Goddard when he was state attorney general, said Wake is a highly capable judge “and in my experience has been that as a judge he’s been very fair.”
O’Grady said she’s not inclined to try to have Wake removed from the panel.
“The judges make their determination if they have a conflict,” she said, adding, “I’ll proceed with the judges assigned.”