Response or Comment
Under the provisions of Section 21 of the Federal Judicial Code, Victor Berger and others, who had been indicted under the Espionage Act in the Northern District of Illinois, filed an affidavit charging Judge Landis with personal bias and prejudice against them as German-Americans, and moved for the assignment of another judge to preside at their trial. The motion was overruled by Judge Landis, and he himself presided at the trial, and the defendants were convicted and sentenced. The Supreme Court of the United States, to which the matter came on certificate, held, three justices dissenting, that Judge Landis could not, under the statute, pass upon the truth of the facts alleged in the affidavit showing prejudice, but that, upon the filing of an affidavit sufficient on its face, he was incapacitated from further proceeding with the case. Berger v. United States, No. 460, decided January 31, 1921.
Sunderland, Edson R. "Disqualification of Judges by Prejudice." Mich. L. Rev. 19 (1921): 637-8.