As far as I can tell, the Ninth Circuit has never before granted mandamus relief in recusal settings like this one. But there's a first time for everything, and this one seems like an appropriate occasion for it. It's a death row habeas case, and the petitioner claims that the prosecutor's office, including the head of that office (Jan Bennetts), introduced fabricated or
intentionally misleading evidence at the clemency hearing.
But Judge Brailsford was a co-clerk with the lead prosecutor (Bennetts) for Judge Thomas Nelson back in 1993. Moreover, even a quarter century later, during Judge Brailsford's investiture to the Idaho Court of Appeals, Ms. Bennetts spoke of their continuing friendship fondly, saying that "Amanda and I met by circumstance, but we became friends by choice. Amanda is
the kind of friend you feel incredibly fortunate to find. They’re few and far
between." Judge Brailsford's attitude was reciprocal, thanking her “dear friend”
Bennetts and describing the two of them as “kindred spirits.”
You can see why a reasonable person might indeed doubt Judge Brailsford's ability to impartially adjudicate the allegations against Ms. Bennetts in such a setting, no?
Judge Bybee also waxes poetic about the incredibly close nature of co-clerks -- and has ample reason to do so, since he's seen many come through during his own tenure, as well as his own experience clerking on the Fourth Circuit. To a degree, his description may be a bit idyllic; that said, I'm confident that he's accurately described many co-clerk relationships, as well as at least a portion of the experience:
"Our clerks
represent the best and the brightest from American law schools. Although the
selection process is highly competitive, once our clerks begin—typically for a one- or two-year period of service—they are no longer competitors but colleagues in
service to the courts of the United States. Our clerks work long hours in monastic
conditions, bound by duties of confidentiality and loyalty to the judge. Chambers
are tight-knit environments that depend on constant collaboration between co-clerks.
The friendships developed between co-clerks can be especially intimate and
enduring, often lasting long beyond the clerkship itself."
Ah, those were the days.
