Chief Judge Rader Apologizes for Recusals


On Friday, May 23, 2014, right before the long holiday weekend, news began to circulate that Chief Judge Rader had announced that he would be stepping down as Chief Judge of the United States Court of Appeals for the Federal Circuit.

Immediately, the Wall Street Journal and began speculating that Judge Rader’s decision to step down was tied to an email endorsing attorney Edward Reines, a patent lawyer at Weil Gotshal & Manges LLP and president of the Federal Circuit Advisory Council. This speculation picked up when Rader released a letter (see below) to the public addressed to the other members of the Federal Circuit apologizing for the appearance of impropriety associated with his email to Reines (whom he did not name directly), which necessitated his several recent recusals.

I find myself speechless, which doesn’t happen often. On the one hand, those that know Judge Rader know that he is extremely strong-willed and always eager for a vigorous substantive debate. The thought that any familiarity with someone who appears before him would lead to any advantage strikes me as thoroughly nonsensical. On the other hand, ethics for lawyers and even more so for judges is not about truth, but rather appearances.

The unfortunate piece to this puzzle is that anti-patent forces are using this episode to malign the entire patent system, patent attorneys and the Federal Circuit. Meanwhile, these same patent critics praise the Supreme Court for constantly issuing decisions that do not favor innovators who seek patents.

On the heels of the latest patent legislation being defeated in the Senate, the patent system now faces more questions. I don’t mind the questions, but the adulation of justices who don’t understand patent law, don’t understand science and who don’t even use e-mail should be a cause for concern.

Below is the aforementioned letter released by Chief Judge Rader.

Dear Colleagues,

During the past few weeks I have recused myself from certain cases on which I previously sat. I feel it necessary to create a public record concerning the circumstances that lead to those recusals. More importantly, I wish to apologize for creating the need for the recursals. I will immediately release this letter publicly in order to convey my apologies and protect the court’s integrity.

I have come to realize that I have engaged in conduct that crossed lines established for the purpose of maintaining a judicial process whose integrity must remain beyond question. It is important to emphasize that I did not and would never compromise my impartiality in judging any case before me. But avoiding even the appearance of partriality is a vital interest of our courts, and I compromised that interest by transgressing limits on judges’ interactions with attorneys who appear before the court. I was inexcusably careless, and I sincerely apologize.

I particularly regret an email message I sent to an attorney who had argued before the court. The email reported, with certain inaccuracies, a conversation I had with another member of the court who had praised the attorney’s performance. I added my own praise and urged the attorney to show the email to others. While I never expected that email to emerge as it did, I realize in retrospect that the email constituted a breach of the ethical obligation not to lend the prestige of the judicial office to advance the private interests of others. I apologize for that error, which may have led to the perception that the attorney in question was in position to influence me in my performance of judicial duties.

Working with the court, I have taken steps to remedy the breaches for which I was responsible by recusing in cases as to which a question might be raised as to my impartiality. I am committed to adhering carefully to the requirements of the Code of Conduct for United States judges in making any necessary recusal decisions. I am truly sorry for the lapse and will work diligently to ensure that it does not recur. Again, the judiciary’s most treasured attribute is its integrity. I will work diligently with my colleagues to ensure and protect our court’s standing.


Randall R. Rader
Chief Judge

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