cites, and so it becomes necessary to draw textual clues from his submission as to what his lawyers may have been thinking when they drafted it. Counsel make assertions and seek information about me, my wife and our relatives to the third degree of consanguinity (Aff. PP 37-41), and the relationships any or all may have to the State of Israel. This may mean that El-Gabrowny is invoking § 455(b)(5), which requires recusal when the judge "or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: . . . (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding."
The charges in this case involve acts of violence directed at people and places in this country, particularly in New York. Even if those who are charged with committing and planning such acts are alleged to have done so in part because they oppose United States support for the policies or the existence of the State of Israel, it is impossible to imagine any effect on Israel from the outcome of this case, whatever it may be, that can be described by a rational person as "substantial." Cf. McCann, 775 F. Supp. at 1543 (rejecting as "speculative" claim that opposing party might contribute to university at which judge's wife taught, enabling enhancement of salaries and benefits).
Nor is El-Gabrowny's argument strengthened by the suggestion in his reply papers that Israel has been cast by the government's theory of the case as the victim of the World Trade Center explosion, and therefore any ties to that country would be ties to a victim. The victims of the World Trade Center explosion were the six people it killed, the hundreds it injured, and the thousands who felt its effects in other ways. If it is the government's theory that that explosion was a protest against United States policy, then the victims were targeted as Americans, in particular people who worked in New York. If the logic of El-Gabrowny's position about a relationship to victims were accepted, a more fundamental reason for my recusal would be that I am an American, in particular a New Yorker. That, of course, would compel the disqualification of every judge on this Court, if not in this country, and gives away the basic illogic of El-Gabrowny's position.
3. Section 455(a)
Section 455(a), calling upon any judicial officer of the United States to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned," provides broader grounds for recusal than either § 144 or § 455(b). Apple, 829 F.2d at 333. It requires recusal not only when there is actual partiality, but also when there is "'even the appearance of partiality.'" Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860, 100 L. Ed. 2d 855, 108 S. Ct. 2194 (1988) (quoting Liljeberg, 796 F.2d 796, 802 (5th Cir. 1986)).
However, to say that § 455(a) requires concern for appearances is not to say that it requires concern for mirages. The standard is an objective one, and is applied "not by considering what a straw poll of the only partly informed man-in-the-street would show -- but by examining the record facts and the law, and then deciding whether a reasonable person knowing and understanding all the relevant facts would recuse the judge." Drexel, 861 F.2d at 1313. "Section 455(a) was not meant to require disqualification every time one party can make some argument, no matter how unreasonable, that the appearance of prejudice would result." Lamborn, 726 F. Supp. at 516. Indeed, a "judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequence of his expected adverse decision . . . . Nothing in [§ 455(a)] should be read to warrant the transformation of a litigant's fear that a judge may decide a question against him into a 'reasonable fear' that the judge will not be impartial." Id. (quoting S. Rep. No. 419, 93d Cong., 1st Sess. 5 (1973)). More particularly, "where an interest is not direct, but is remote, contingent, or speculative, it is not the kind of interest which reasonably brings into question a judge's impartiality." Drexel, 861 F.2d at 1313.
This is not the first time a judge has been called on to apply that standard to arguments like the ones being pressed here. Judges of African-American descent have faced -- and faced down -- this sort of thing in both race- and sex-based civil rights cases, where their impartiality has been called into question on the ground that their race and their careers as civil rights advocates before they assumed the bench meant they could not be impartial. Two eminent judges of this Court had no difficulty sweeping aside that claim. See Paschall v. Mayone, 454 F. Supp. 1289, 1301 (S.D.N.Y. 1978) (Carter, J.) (race discrimination); Blank v. Sullivan & Cromwell, 418 F. Supp. 1, 4-5 (S.D.N.Y. 1975) (Motley, J.) (sex discrimination). Nor have others when presented with similar claims. See Singer v. Wadman, 745 F.2d 606, 608 (10th Cir. 1984) (motion to recuse Mormon judge on ground lawsuit involved "theocratic power structure of Utah"), cert. denied, 470 U.S. 1028, 84 L. Ed. 2d 785, 105 S. Ct. 1396 (1985); State of Idaho v. Freeman, 507 F. Supp. 706, 729-33 (D. Idaho 1981) (motion to recuse Mormon judge on ground his former office in church predisposed him against Equal Rights Amendment). These and other cases have drawn both authority and inspiration from Judge Higginbotham's thorough and powerful opinion in Pennsylvania v. Local Union 542, Int'l Union of Operating Eng'rs, 388 F. Supp. 155 (E.D. Pa. 1974). That opinion is lengthy; to attempt to summarize it would do a disservice to both the opinion and its author. Besides, it is worth reading in full for its own sake. However, Judge Higginbotham did identify succinctly the fatal evil that infected the argument presented to him, and the one presented to me: "The absolute consequence and thrust of [movants'] rationale would amount to, in practice, a double standard within the federal judiciary." 388 F. Supp. at 165 (emphasis in original) The objection here is not based on race or sex or the Mormon religion, but the motion in this case is in all relevant ways the same as the motions in those cases; it is the same rancid wine in a different bottle.
The basic fact issue in this case is whether El-Gabrowny and the others named as defendants in this indictment made the agreements and committed the other acts charged with the requisite knowledge and intent. That issue will be decided by members of a jury. Even those jurors, who are the only fact-finders in the case, will have no occasion to approve or disapprove the views of Jews or Zionists, or the detractors of either or both. Even they will not be asked to make a judgment approving or disapproving any views or beliefs of these defendants, or to apply their own views or beliefs. Still less so the presiding judge, whose only function is to determine and apply the law, subject to review on all rulings by the Court of Appeals.
Passing the historical curiosity that the standard El-Gabrowny advocates would disqualify not only an obscure district judge such as the author of this opinion, but also Justices Brandeis and Frankfurter, who would be barred from reviewing this case if they were alive and sitting today, each having been both a Jew and a Zionist, see P. Strum, Louis D. Brandeis 268 (Harvard University Press 1984), whether the presiding judge is an Orthodox Jew or a Zionist or some combination of the two, or neither, is utterly irrelevant to this case. That someone with an imagination or a motive might hallucinate relevance is not the standard, and therefore cannot provide the basis for decision. That is why I have not answered and will not answer the questions posed by El-Gabrowny's counsel about connections to Israel between me and my wife and our relatives to the third degree of consanguinity. To respond to such inquiries is to concede the relevance of the information.
There is no relevant fact, no principle of logic, and no rule of law that supports this motion. Accordingly, the motion is denied.
Dated: New York, New York
February 15, 1994
Michael B. Mukasey
U.S. District Judge