Should Judge Posner be Recused from Anti-Abortion Speech Cases?

Gerard Magliocca raises this question over at Concurring Opinions in light of Judge Richard Posner's article at Slate, where he comments on McCullen v. Coakley. In McCullen, the Court struck down a Massachusetts law that prohibited people from standing within 35 feet of the entrance to reproductive health care facilities. The law was enacted in light of protesters who would approach patients seeking abortions and attempt to deter them from undertaking the procedure.

The Court held that the 35-foot buffer zone violated the First Amendment. Even though the law did not regulate the content of speech, the First Amendment required the law to be "narrowly tailored to serve a significant governmental interest." The 35-foot buffer zone was too broad, since the state could have chosen to prosecute those protesters who harassed or intimidated women seeking abortions, or gotten injunctions against specific people or groups who were particularly disruptive.

Magliocca suggests that counsel in any cases involving laws restricting the speech of those protesting abortion should file a motion seeking Judge Richard Posner's critical commentary of the Court's decision. Posner, in his commentary, writes:

Who wants to be buttonholed on the sidewalk by “uncomfortable message[s],” usually delivered by nuts? Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society. Strangers don’t meet on the sidewalk to discuss “the issues of the day.” (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?) The assertion that abortion protesters “wish to converse” with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.

The issue is not mainly, as the court stated in the last sentence that I quoted, the maintenance of public safety. Most abortion protesters are not violent, and police will be present to protect the visitors to the clinic. The issue is the privacy, anxiety, and embarrassment of the abortion clinic’s patients—interests that outweigh, in my judgment anyway, the negligible contribution that abortion protesters make to the marketplace of ideas and opinions.

28 U.S.C. § 455(a) states: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Magliocca argues that Posner's remarks in the article raise reasonable questions about whether he can be impartial toward anti-abortion protesters.

What would Posner think about a motion for his recusal based on opinions he's expressed outside the courtroom? In an interview with Posner, published in the American Bar Association Journal, Joel Cohen raises this very question:

[Posner]: I don't have a reputation for being vengeful, do I? 

[Cohen]: I'm not suggesting that. I'm suggesting if I were a litigant before you and you had written articles containing, shall I say, some vitriol about a position that I might want to articulate in your courtroom, I might want to get you off the case. It would be easier for me if I were rarely before your court. It seems to me when you write, as you do so frequently, it could raise an issue that might concern litigants. Whether they make a recusal motion or not, they might wonder if they'll get a fair shake before a judge with so many, many opinions as you have. 

[Posner]: The fallacy, I think, in what you're saying is the concept of the fair shake. I don't think people have the right to a tabula rasa—some total ignoramus who's never thought about any of the issues. And if you've thought about them, you have opinions. Why shouldn't you express them? You have to be ready to change them obviously. But you give people useful information by telling them what you think.

From this answer in the interview, it looks like Posner would not be very receptive to the motion that Magliocca suggests. Posner may argue that his article in Slate does not foreclose the possibility that he will change his opinions, so it is not reasonable to question whether he will be impartial in anti-abortion protest cases. And Posner may also point out that it is better for parties to know what he thinks, since this information may be useful.

I am not sure that this explanation could overcome concerns raised by Posner's commenting that certain parties are "nuts" and that their contribution to the marketplace of ideas is "negligible." While Posner may hold these opinions, committing them to writing and publishing them on Slate indicates that these opinions are probably more solidly-held than other opinions than ones he would not be willing to argue to the public. And while it may be useful for parties to know what judges think, it is not immediately clear to me how parties can make constructive use of the knowledge that Posner thinks they are "nuts."