Last Lemming Over The Cliff…

This is ASTOUNDINGLY corrupt. Like real 19th century robber-baron stuff. https://t.co/ipqQemveAN

— Chris Hayes (@chrislhayes) October 17, 2024

Well, no. First, the background:

When Media Matters asked that Musk reveal all parties who could have a financial interest in outcome, O’Connor dismissed request and made MM pay for X’s attorneys fees over the disclosure request. O’Connor called it an attempt at forcing “a backdoor recusal”

— Bobby Allyn (@BobbyAllyn) October 17, 2024

Start there:

Judges, judicial employees, and federal public defender employees nationwide are bound by ethics laws and prescribed codes of conduct. These govern the proper performance of official duties and limit certain outside activities to avoid conflicts of interest. Under the Judicial Conduct and Disability Act, chief judges and circuit judicial councils, and the Judicial Conference of the United States, when appropriate, investigate and resolve any submitted claim that a judge “has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts” or “is unable to discharge all the duties of office by reason of mental or physical disability.” Learn about the Judicial Conduct and Disability Act and the process for filing a complaint against a judge. The public website of each judicial circuit also includes the rules that explain what may be complained about, who may be complained about, where to file a complaint, and how the complaint will be processed. An annual report on the Judicial Business of the United States Courts includes information on all judicial complaints recently filed, terminated, and pending. 

Every judge is required to develop a list of personal and financial interests that would require recusal, which courts use with automated conflict-checking software to identify court cases in which a judge may have a disqualifying conflict of interest under 28 U.S.C. § 455 or the Code of Conduct for United States Judges. All judges and high-ranking judiciary officials and senior staff must file public financial disclosure reports each year, as required of all three government branches by the Ethics in Government Act. Judiciary personnel are also subject to certain provisions in the Stop Trading on Congressional Knowledge (“STOCK”) Act.

As implied, there is a chief judge in the Northern District of Texas. That would be Judge David Godbey, not Judge O’Connor. There are also other layers of oversight above the Chief Judge, so oversight doesn’t begin and end there.

Now, that NPR story is dated today. Which means this story is fairly new, and the Chief Judge probably hasn’t had time to look into it. And yes, I think the “back door recusal” language will pique the CJ’s interest, if not also the local judicial council. IOW, this looks bad on paper, which is pretty much enough to trigger a conflict of interest recusal, back or front door.

Then it gets more interesting, which is what has Chris Hayes all worked up (and that’s why judges below the Supremes avoid even the appearance of conflict. Thomas & Co. think they are “co-equal,” which makes them think they are invisible and bulletproof).

Update with comment from @steve_vladeck

“Are we going to allow companies to ... stack the deck in their favor whenever they have the power to get you to agree to terms of service?”https://t.co/dRsKzyngw3

— Bobby Allyn (@BobbyAllyn) October 17, 2024

Yeah, Media Matters has a problem, but it isn’t necessarily tied to Twitter’s TOS.

Just to be clear, I *don't* read these terms to mean that every case will end up before Judge O'Connor, specifically. The only place in the Northern District where you're guaranteed to draw O'Connor is Wichita Falls. Elsewhere in the district, you could draw other judges.

— Steve Vladeck (@steve_vladeck) October 17, 2024

I don’t know how the Northern District allocates cases, but there are 16 judges in the district. I used to know the practice of the Western District, and can specifically state that a federal judge from Pecos came to Austin to try a case filed in the Austin division. This is the general practice: judges try cases around the district, not just in the division where they regularly sit. Professor Vladeck would know more about this than me (I’m not going to look up the local rules to figure out their filing procedures), but at least filing in the Northern District is not filing in Judge O’Connor’s court.

So not really corrupt, 19th century robber baron stuff. Especially if the Chief Judge and/or local administrative council remind O’Connor of his ethical obligations (obligations they can enforce very much through the front door).

(And the answer to Professor Vladeck’s question is that the law (and the courts) frown upon such provisions, because they can’t be negotiated and, more importantly, they make the courts a cat’s paw for companies. I suspect the Northern District is going to make sure O’Connor is not assigned these cases, and perhaps even void this specific clause.)