In this case, a panel of the 9th Circuit disqualified a district judge on the grounds that his further handling of a case regarding whale hunting, hunters for whale hunters, and international law would undermine at least “the appearance of justice.”  Institute of Cetacean Research, a Japanese research foundation, et al v. Sea Shepherd Conservation Society, 708 F.3d 1099 (9th Cir., Feb. 25, 2013). Cetacean sought an injunction putting a stop to the conduct of Sea Shephard.

A school of American whale-oriented environmentalists attacked a Japanese ship hunting for whales. This all happened south of Australia perhaps relatively near Antarctica. The brilliant Judge Kozinski–up there with Posner, maybe Easterwood, and a couple of others–appears to have written the opinion. (Since his signature appears on it, it is customary among lawyer to infer that he did in fact write it, although he may have provided the best language, edited it, talked about it, or merely read it.

The decision begins this way: “You don’t need a peg leg or an eye patch.  When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how minded you believe your purpose to be.”

Truly wonderful prose! Undoubtedly true, except perhaps in wartime, a trivial mistake–if it is a mistake–in connection with this case.

The opinion itself is also as about as elegant as this sort of opinion can be.  The whaling vessel was a research ship; it had a research permit under international law.  The discussion is learned, educational, and surely correct. There are even dramatic photos.  The Institute had sought an injunction, and the district had refused to grant it.  I will discuss the panel’s reasoning further.  Any lawyer having a few extra minutes will love it, even if they are an environmental lover of the most passionate nature.

The only part of the story I will tell here is what happened after the district court’s decision was reversed. That judge was subjected to stinging criticism.  Here is what the panel wrote: “The district judge’s numerous, serious and obvious errors identified in our opinion [and they were]  raise doubts as to whether he will be perceived as impartial in presiding over this high-profile case.  The appearance of justice would be served if the case were transferred to another district judge, drawn at random, and we so order in accordance with the standing orders of the Western District of Washington. The panel retains jurisdiction over any further appeals or writs involving this case.”