Judicial recusal—the process by which judges withdraw from specific cases, often for ethical reasons—is becoming inextricably intertwined with the most contentious issues of the day. In just the past few weeks, recusal issues have become primary talking points in two high-profile criminal trials. Judge Aileen Cannon’s dismissal of a criminal case against former President Trump on controversial legal grounds has raised questions about her fitness to continue with the case. Justin Jouvenal, Dismissal Draws New Scrutiny to Judge Cannon’s Handling of Trump Case, Wash. Post, July 15, 2024. Meanwhile, a trial judge in Georgia was recently ordered to recuse from the longest-running criminal trial in that state’s history. Holly Bailey, Judge Presiding over Young Thug Trial Ordered off the Case, Wash. Post, July 15, 2024.
Recusal’s role in our judicial system is neither new nor unique to American jurisprudence. In fact, recusal is as old as courts themselves. Since the time of Justinian, recusal law has been a consistent feature of all manner of judicial systems, and has essentially served the same two functions: to protect litigants from potentially biased judges and to promote public confidence in the impartiality of its judicial system. See Louis J. Virelli III, Disqualifying the High Court: Supreme Court Recusal and the Constitution 1–15 (2016). Throughout that history, recusal has been primarily the domain of judges. Recusal decisions have consistently been made, in the first instance, by the judges whose participation is under question and reviewed by higher courts where available. While judges are free to explain their recusal decisions, and often will when judicial review of those decisions is likely, there are no clear standards for what amounts to an acceptable explanation, and judges that are not subject to review—like justices of the US Supreme Court—rarely offer any explanations.
Despite this somewhat unusual procedural posture, recusal law in America has consistently adhered to its Roman and English common law roots, and has not been a particularly popular or controversial topic among legislators, commentators, or the media—that is, until recently. Over the last decade or so, and in particular the last few years, recusal increasingly has become more than merely prophylactic. Rather than just a shield against individual bias and public cynicism, recusal doctrine has been employed increasingly as a sword by a wide range of interested actors, including members of Congress and the press. See, e.g., Letter from Senators Sheldon Whitehouse & Richard J. Durbin to Chief Justice John Roberts (May 23, 2024) (requesting that Justice Samuel Alito recuse himself from cases involving the January 6 insurrection).
There is nothing inherently problematic about affirmatively using recusal to prevent ethical and other potential problems in ongoing litigation, especially when that litigation is of significant national interest or importance. Recusal seeks to protect judicial legitimacy by creating assurances for a watchful public that judges are acting impartially, even in cases where there is no direct evidence that the presiding judge has any actual bias or conflict of interest in the case. Where there is an appearance of bias or conflict, bringing it to light can reinforce the legitimacy of the judicial system, even if it is in reality only symbolic. This was the rationale for the recent recusal order in Georgia. In a high-profile criminal case—because it both is the longest-running criminal trial in the state’s history and involves popular rapper Jeffrey Lamar Willams, a.k.a. Young Thug—the trial judge was ordered to recuse in order to “preserv[e] the public’s confidence in the judicial system,” despite the reviewing judge’s confidence that the trial judge did not do anything “inherently improper.” Bailey, supra.
The challenge for recusal is when it is employed as a lever to attack the credibility of a particular judge or judicial proceeding. The growing prominence of recusal within public discourse about the courts creates an opening for opportunistic recusal arguments that are designed to discredit otherwise valid judicial proceedings in order to influence either the outcome or the ultimate impact of a case. Think of the ongoing trial of former President Trump for making hush money payments to influence the outcome of the presidential election. Trump called for N.Y. Justice Juan Merchand, the judge overseeing the trial, to recuse himself from the trial because he was “running a kangaroo court.” He made this assertion despite a total lack of evidence of any disqualifying bias or conflict on the judge’s part, and without any basis for even an appearance of impropriety. Trump’s unsubstantiated claims of political bias turned recusal’s protective power on its head, instead using the specter of bias as a way of convincing the public that the trial was somehow unfair or illegitimate.
This example is admittedly unusual in that it involves an extremely high-profile case and defendant. It is not, however, unique. As former Attorney General Ted Olson wrote recently: “In recent months, we have seen an alarming increase in baseless judicial-ethics attacks.” Theodore B. Olson, Proliferating Recusal Demands Threaten the Judiciary, Wall St. J., July 24, 2024. He cited more mundane examples of, in his words, “coordinated campaigns” by nonparties to recuse judges deemed to hold unfavorable views to the individuals or entities seeking recusal. Id. A recent ProPublica report on judicial recusal in federal court made a similar finding:
A ProPublica analysis found a lack of transparency regarding conflicts plagues federal and state courts where loose rules, inconsistent enforcement and creative interpretations of guidelines routinely allow judges to withhold potential conflicts from the parties before them. . . . Ethics experts say that the judges’ interpretation of the rules may often lie within the letter of the law, but at the expense of its spirit.
Noah Pransky et al., Even When Big Cases Intersect with Their Families’ Interests, Many Judges Choose Not to Recuse, ProPublica, July 17, 2024.
This more aggressive use of recusal—or at least the common perception thereof—creates a meta-legitimacy problem within recusal law; the doctrine designed to protect the integrity of judicial proceedings finds itself having to defend its own legitimacy. There is no one cause of this phenomenon. In fact, the explanation likely implicates a wide range of actors.
As discussed above, litigants and interest groups have taken to using recusal as a tool for influencing the identity and behavior of judges in a given case. Legislators and the media have adopted recusal as a hot button issue within the even more heated debate about a judiciary perceived by the public as increasingly partisan. Diligent examination of the judiciary by lawmakers and the press is not at all problematic. Inquiries into judges’ and justices’ behavior are certainly warranted, and the public is entitled to—and in fact should—hear about conduct that could jeopardize judicial impartiality and legitimacy. The challenge is making the proper connection between judicial conduct and the applicable recusal standards. Notions such as the appearance of impartiality resonate with the general public but are often described more broadly than commonly understood within the law of recusal. The result is that the public envisions a lower bar for recusal than recusal doctrine requires or even practically could require without transforming recusal into a vehicle for rampant judge-shopping.
Judges’ recusal practices potentially compound this problem. Recusal procedures, which have a pedigree as old as recusal itself, create an air of mystery and isolation around recusal that is unusual in our judicial system. Judges rarely explain their recusal decisions, creating an (often justifiable, yet palpable) elusiveness to those decisions that distinguishes them from more traditional orders and opinions. While this should not be enough to seriously threaten recusal’s credibility, especially because lower court judges do sometimes offer explanations, it adds fuel to an already smoldering fire. Similarly, the fact that judges decide their own recusal issues in the first instance promotes skepticism about the integrity of those decisions. For the uninitiated, a judge deciding their own fate in recusal matters seems like an inherent conflict that could itself merit (ironically) recusal. Although admittedly unusual, this practice is not necessarily problematic. As an initial matter, it has been in place for over a millennium and reflects the fact that judges inevitably have a better grasp of the circumstances surrounding their own recusal than any other party. It is also less troubling for lower courts because the availability of judicial review minimizes concerns about self-dealing. Nevertheless, when combined with the increased public attention brought to recusal and its aggressive use by litigants and other interested observers, otherwise benign recusal procedures can raise concerns about the quality and reliability of the doctrine more generally.
So what to do about this looming crisis of confidence over the very doctrine meant to promote public confidence in the judiciary? The answer is better public information about the actual law of recusal and a more pragmatic and professional application of that law by judges, lawmakers, commentators, and litigants.
The law of recusal for judges derives from two basic sources: the Due Process Clause of the Constitution and recusal statutes and codes. Due process has two analogous, but conceptually distinct, applications, both of which are related to the fairness of the proceeding. First, due process is concerned with the extent of the hearing provided; the greater a litigant’s personal stake in the outcome, the more involved the procedures required by due process. Second, and related, is the requirement of a neutral, unbiased arbiter. This includes a range of requirements relating to an adjudicator’s impartiality, from “an absence of actual bias” against the parties to the admonitions that “no man shall be a judge in his own case” and that the “possible temptation to the average man as a judge . . . not to hold the balance nice, clear, and true between the [parties] denies [them] due process of law.” Williams v. Pennsylvania, 136 S. Ct. 1899, 1905 (2016); Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 886 (2009); Tumey v. State of Ohio, 273 U.S. 510, 532 (1927).
Recusal can be a powerful tool to remedy due process violations based on partiality, especially in cases where the adjudicator exhibits actual or probable bias against a party or has a personal conflict of interest. The Supreme Court has confirmed recusal’s role in these cases but has been reluctant to apply due process protections too broadly. The Court has applied the Due Process Clause most readily in cases where the adjudicator had a financial interest in the outcome of a case or where some other conflict of interest exists, such as when a judge that charged a party with contempt presided over that party’s contempt hearing. The Court’s two most recent cases on the issue involved state supreme court justices. The Court found due process violations where a state supreme court justice participated in a case in which his largest judicial campaign donor was a party, and where a state supreme court justice took part in the review of a defendant’s death sentence that the justice had personally approved while serving as the district attorney responsible for the case. In each instance, the Court cited the justice’s “probability of actual bias” as grounds for recusal.
Despite its willingness to find due process violations in these cases, the Supreme Court has consistently reaffirmed that most recusal cases do not implicate the Due Process Clause. While the Court has noted that due process requires that “justice must satisfy the appearance of justice,” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986), its holdings and other statements about the limits of due process recusal make clear that this statement is not meant to conflate constitutional recusal requirements with the broader “impartiality might reasonably be questioned” standard in the federal recusal statute. 28 U.S.C. § 455. It has made clear that “most matters relating to judicial disqualification [do] not rise to a constitutional level,” and that “‘matters of kinship, personal bias, state policy, [and] remoteness of interest, would seem generally to be matters merely of legislative discretion.’” Caperton, 556 U.S. at 876. This qualification is a consistent theme in the Court’s recusal jurisprudence and serves as a demarcation of the boundary between the narrow range of due process recusals—recusals based on whether a reasonable judge would likely be biased in a given case and that often involve what Justice Kennedy has called “extreme facts”—and the broader universe of situations that could raise concerns about the impartiality and legitimacy of an adjudicator’s decision.
The federal judicial recusal statute represents the broadest recusal standard applicable to federal judges (and is similar in kind to state recusal statutes). 28 U.S.C. § 455. It developed alongside codes of judicial conduct such as the ABA’s 1924 Canons of Judicial Ethics, the ABA’s subsequent Model Code of Judicial Conduct (Model Code), and the Judicial Conference of the United States’s Code of Conduct for United States Judges (Code of Conduct). Code of Conduct for U.S. Judges Canon 3C (U.S. Judicial Conf. 2019); Model Code of Jud. Conduct r. 2.11 (Am. Bar Ass’n 2010); Canons of Jud. Ethics Canon 4 (Am. Bar Ass’n 1924). Every state supreme court also has adopted a code of conduct like the Model Code, such that “all judges in the federal and state judicial systems [a]re subject to substantially similar codes of conduct.” Charles Gardner Geyh, Judicial Ethics and Discipline in the States, State Ct. Rep. (Dec. 14, 2023).
In addition to requiring recusal in instances of personal bias, previous involvement in (or knowledge of) the case at hand, financial interest, and familial and other personal relationships, section 455 requires recusal in any case where a judge’s “impartiality might reasonably be questioned” (the “reasonable appearance standard”). This standard is a popular and relatively new development in American recusal law. The objective reasonable appearance standard was adopted in 1974 in part due to the same standard being included in the 1972 Model Code and the 1973 Code of Conduct. The standard was designed to promote public confidence in the judiciary by ensuring that cases are decided by individuals not only who are impartial in fact, but who appear so to the people affected by, and expected to comply with, their decisions. It is not, however, a peremptory recusal provision. Congress adopted such a provision in 1911, only to have the Court severely limit it to effectively a judicial discretion standard 10 years later. Berger v. United States, 41 U.S. 230 (1921).
The reasonable appearance standard relies on the perspective of an objective observer who is aware of all of the relevant facts. It asks if, based on those facts, the observer would question a judge’s impartiality in a given case. On first blush, the reasonable appearance standard seems like a broad prohibition. If all it takes is a reasonable doubt to require recusal, lower court judges may find themselves routinely removed from cases without any actual bias or conflict. In theory, this could be a good thing. Especially in cases of lower court judges that are easily replaceable, the benefits of recusal may often outweigh whatever inconvenience or inefficiency it creates. In reality, however, the reasonable appearance standard has been applied more carefully. This is due in part to the longstanding presumption, dating back at least to Blackstone’s English common law, that judges are able to remain impartial in most circumstances. It is also due to the need to balance the benefits of recusal against the temptation to use a permissive recusal standard to disqualify any judge that a litigant simply deems undesirable. The reasonable appearance standard has thus not been applied quite as freely as its plain language may suggest, often for good reason.
With the law of recusal fresh at hand, what advice for participants in this brave new world of recusal? The answer is threefold. First, judges must engage in the public discourse around recusal in a more thorough, legally rigorous, and transparent way. This is not to suggest that anything inappropriate or nefarious is going on. It does reflect, however, the fact that judges are both most directly impacted by recusal law and most experienced and expert in its application. Judges must be clear about the legal requirements surrounding recusal, including the established limits to due process recusal and the reasonable appearance standard and the importance of those limits to prevent recusal serving as a proxy for judge shopping. One obvious way to do this is by updating recusal procedures to address the greater skepticism surrounding recusal, such as requiring more frequent and detailed explanations of initial recusal decisions and appellate review thereof. Others are publishing comments to model codes addressing recusal and using public appearances to inform and educate the public about the judicial system and recusal’s proper place in it.
Second, legislators and the media should be more diligent and transparent about how they talk about and advocate for recusal, in particular when addressing specific cases. This is not to say that lawmakers and the press cannot or should not express their views about judicial ethics and speak out when potential violations occur—quite the contrary. It is a call for a more thorough presentation of the issues that take into account potential mitigating factors such as concerns about judge shopping and other harms associated with increased recusals. This will help observers better understand why recusal may be merited in a case involving a judge’s receipt of gifts from an interested nonparty, for example, but not in a case where a lawyer in the case was a law school classmate (or vice versa). The result is not only a more persuasive and credible recusal argument in a given case, but also an informed, objective basis against which to judge future recusal issues. Perhaps more importantly, a requirement of greater rigor by powerful voices such as the media and Congress will help lend greater credibility to recusal doctrine and the judiciary as a whole by publicly acknowledging the complexities of a judge’s decision to recuse.
Finally (and admittedly most idealistically), litigants and other interested parties must take their recusal rhetoric more seriously for fear of causing recusal doctrine to be viewed as just another means to an end, rather than a centuries-old protector of a fair and just judicial system. This can manifest itself through a more legalistic approach to recusal, meaning an approach to recusal that focuses on established legal standards and their effect on the judicial system, rather than a more intuitive approach based on a more generalized sense of professional ethics. Remember, recusal has dual purposes: It protects litigants’ right to an impartial adjudicator and protects the integrity of the judicial system in the eyes of a watchful public. As recusal law seeks to serve both of these purposes, it can lead to (justifiable, but) sometimes counterintuitive results. Take, for instance, the appearance of impartiality standard. An intuitive approach may conclude that a judge presiding over a case in which a former law clerk or personal friend is one of the attorneys of record is grounds for recusal. This is understandable, as impartiality is maximized when a judge is completely unfamiliar with, and thus equally inclined to being persuaded by, all of the participants in a proceeding. A more legalistic tack, however, prioritizes the language of the statute, which focuses on family members serving as lawyers but not other personal acquaintances, 28 U.S.C. § 455(b)(5), as well as the impact on the judicial system writ large, which would permit judges to preside over cases involving a lawyer with whom they are familiar (and even quite fond of), at least in part because the alternative could lead to a spike in recusals that could put a serious strain on the efficacy of the courts to resolve cases. This is not to say that recusal is not permitted where a judge has a personal relationship with one of the lawyers before them, only that it can be tempting for practitioners, especially experienced ones with a well-developed sense of professional ethics, to substitute their own understanding of the propriety of a judge participating in a case for the legal requirements governing that participation. If that practitioner is then critical of the judge’s participation, they run the risk of inappropriately weakening public confidence in the integrity of the judiciary. If the circumstances surrounding a personal relationship are indeed grounds for recusal, the best way to pursue that question is by a more traditional legal analysis of recusal and its requirements, rather than relying first on professional instincts, however sharp.
An additional benefit of a more legalistic approach to recusal is that it allows practitioners to appear more objective and detached in their recusal motions. For a millennium judges have—at least in the first instance—been responsible for their own recusal decisions. Codex of Justinian, lib. III, title 1, No. 16 (cited in Harrington Putnam, Recusation, 9 Cornell L.Q. 1, 3 (1923)). As a result, litigants and practitioners seeking a judge’s recusal are confronted with the fact that a refusal to recuse will likely result in the same judge whose fitness the litigant just questioned presiding over the remainder of their case. While the severity of this problem can be, and often is, overstated (judges are accustomed to deciding recusal issues and are, of course, capable of remaining impartial despite being asked to recuse), it may nevertheless deter meritorious recusal motions. Treating recusal as just another legal issue to be resolved by the judge can help litigants feel confident that their motion will be taken seriously and can help shape the tone and analytic approach to recusal in a way that minimizes any perceived criticism of the judge.
The hope is that the first two components of a better recusal system will encourage the third. If judges, legislators, and the media better apply, and thus educate the public on the intricacies and importance of, recusal law, practitioners will be better equipped to approach recusal as a traditional legal doctrine. The “baseless” recusal arguments warned of by Attorney General Olson will be harder to defend and, most importantly, less persuasive to good faith observers. They will be replaced by more informed, nuanced, and thorough treatment that will better serve recusal’s twin purposes. A rising recusal tide will, hopefully, lift all boats.
