The issue of recusal now being reviewed by the House Committee on the Judiciary, is but a subpart of greater issue which Congress must investigate based on the evidence of a conspiracy of government attorneys and judges declaring themselves absolutely immune from suit for tortious and/or criminal obstruction of justice by denying access to an impartial jury trial and court to hold them accountable for malfeasance for violating Congress’ delegations under the Rules Enabling Act, the Judiciary Act of 1924, and the Judicial Conference Act (See, http://home.earthlink.net/~isidoror; and http://www.liamsdad.org/others/isidoro.shtml).
This is because in The Case of the Marshalsea, 77 Eng. Rep. 1027 (K.B. 1613), Sir Edward Coke found that Article 39 of the Magna Carta restricted the power of judges to act outside of their jurisdiction such proceedings would be void, and actionable,
[W]hen a Court has (a) jurisdiction of the cause, and proceeds inverso ordine or erroneously, there the party who sues, or the officer or minister of the Court who executes the precept or process of the Court, no action lies against them. But (b) when the Court has not jurisdiction of the cause, there the whole proceeding is [before a person who is not a judge], and actions will lie against them without any regard of the precept or process . . . Id. 77 Eng. Rep. at 1038-41.
Thus, historically there is no absolute judicial and ministerial immunity for acts outside of jurisdiction, and an action will lie for the conspiracy to issue and enforce a void order as part of an illegal enterprise. In England and the colonies, it was in ordinary courts which determined whether government officers, including judges, with good behavior tenure were to be held accountable in either civil or criminal trials for misbehavior. Prakash and Smith, How to Remove a Federal Judge, 116 Yale L. J. 72 at 74 (2006).
Blackstone discussed various English statutes that provided for the making accountable and removal of judges for misbehavior in proceeding. 4 William Blackstone, Commentaries 140 at 141. These were not statutory exception to grants of good-behavior tenure, but consistent with the concept that a judge could be tried in court. See, e.g. R. V. Gaskin, (1799) 1001 Eng. Rep. 1349 (K.B.) (reinstating a parish-clerk upon his demand that his employer show cause for firing him); James Bagg’s Case (1616) 77 Eng. Rep. 1271, 1278-81 (K.B.)(reinstating a burgess for lack of cause to remove him).
Virginia enacted the English Rule in Va. Code §8.01-195.3(3), to hold that a judge or government attorney had no immunity from suit for acts outside of his judicial capacity or jurisdiction. See Robert Craig Waters,“Liability of Judicial Officers under Section 1983” 79 Yale L. J.(December 1969), pp. 326-27 and nn. 29-30). In Stump v. Sparkman, 435 U.S. 349 at 360 (1978), the Supreme Court confirmed that a State judge would be immune from suit only if he did not act outside of his judicial capacity and/or was not performing any act expressly prohibited by statute. See Block, Stump v Sparkman and the History of Judicial Immunity, 4980 Duke L.J. 879 (l980).
Regarding Federal Judges, the Federalist Paper 78, suggested that to assure judicial independence, the Constitution provided Article III judges life tenure dependent on “good behavior.” However, no judicial immunity existed from suit. In fact Article I, § 3, cl. 7, provide for impeachment of judicial officers, and Article II, § 4, provides for the removal of judges after trial and conviction for treason and other high crimes and misdemeanors.
In the Federal Courts, as early as 1806 in Wise v. Withers, 7 U.S. (3 Cranch) 331 (1806), it was recognized that there were restrictions on the power of federal judges, as well as the placing on them liability for acts outside of their jurisdiction authorized by statute.
Thus the evidence from England, the colonies, the Constitutions of Virginia, and the Constitutional Congress, the Northwest Ordinance, and the Virginia Assembly’s Act all point to the same conclusion: judges and government attorneys are subject to litigation in ordinary courts of law for acts outside of their judicial capacity or jurisdiction.
Consequently, none of these writings nor the Rule of Law contemplated that government attorneys and a judge are immune from suit for tortious and/or criminal acts, or that impeachment would be the sole means of holding a judge accountable for malfeasance and misbehavior.