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February 13, 2024

Ethics of Recusal & Disqualification

By: Joseph Davis

The Appellate Judges Education Institute closed with a discussion concerning the ethics of recusal and disqualification for lawyers and judges. The panelists, including the Honorable Bernice Donald, the Honorable Mark Martin, and Professor James Sample, touched on issues concerning the reasoning for recusals, advice for judges that may be forced to consider such an action, and ethical concerns surrounding the judicial system.

When a Recusal May Be Necessary

The panel started the discussion by addressing situations where recusal may be appropriate. Judge Martin highlighted the responsibilities lawyers have due to their unique role in the legal system. The panelists agreed that consideration of a potential recusal requires balancing multiple factors. Judge Martin stressed that the inquiry properly should turn on an objective case-specific assessment to ensure that the facts clearly support recusal. Lawyers should seek the disqualification of a judge to ensure a fair trial only if they have a good faith basis for doing so. Judge Martin noted that lawyers’ attempts to “judge shop” do not constitute good faith and should lawyers should not seek recusal in an attempt to improperly navigate the legal system.

Judge Donald offered a different perspective concerning recusal. She stated that while lawyers may pursue recusal, decisions to recuse lie with judges themselves. Judge Donald explained that every judge must determine whether particular situations present real or perceived conflicts. If a judge has a personal bias, prejudice, or knowledge concerning a case before the bench, he or she has a duty to recuse. Nevertheless, Judge Donald additionally emphasized that there should be no recusal without a good reason for it. She described situations where lawyers have attempted to remove particular judges in election cases solely based on those judges’ perceived political views. Such a strategy does not rest on a valid basis for recusal, as all judges inevitably have political views of some kind. Nevertheless, judges can alleviate concerns of political bias by demonstrating a history of content-neutral opinions accurately reflecting the law.

Should Judges Explain Their Recusal Decisions?

The panelists then addressed whether judges should explain their decisions either to recuse or not to recuse themselves from cases. Judge Donald explained that a written explanation may not always be needed, and, indeed, judges often decline to provide one, but explaining a decision not to recuse is becoming more important. Professor Sample agreed that explanations of recusal decisions have been relatively rare, but suggested that judges looking for guidance on the issue should refer to Justice Scalia’s memorandum concerning Cheney v. United States as a roadmap. The controversy concerned Justice Scalia’s relationship with Vice President Dick Cheney, who was the lead petitioner in that case before the Court.

The panelists further spoke to the benefits of recusal-related explanations. Professor Sample emphasized that, while explanations might not be necessary, judges can reduce potential bias concerns by shedding light on their decisions. Judge Martin agreed that this could in turn promote public confidence in the rule of law. Moreover, Judge Donald articulated that recusal-related explanations could additionally help the media better understand judges’ decisions. Media coverage of the judicial process is particularly important to individuals without a legal background, who face significant barriers in their understanding of the law compared to individuals who have attended law school. More numerous recusal-related explanations could make knowledge of the judicial process more accessible.

The Balance for Elected Judges

Some state court judges take the bench through partisan elections mirroring those for executive and legislative offices. Candidates are selected through partisan primaries, nominated by political parties, and elected by voters. Members of the audience asked the panelists how to balance potential partisan interests with an independent judiciary. Judge Martin acknowledged that elections may seem contrary to the judicial process. Nevertheless, he stated that, while judges’ partisan affiliations may inevitably influence their decision-making, judges should, and often do, maintain the independent judgment expected of them in their judicial duties. Judge Donald observed that perceptions of potential bias due to partisan affiliations are often reduced where judges with long histories of content-neutral opinions are concerned. She added, however, that judges would be wise to have a comprehensive understanding of their family members’ circumstances and potential involvement in or contacts with litigants before the courts.

Final Thoughts

The panelists provided some closing thoughts and advice on the ethics of recusal and potential disqualification for both judges and lawyers alike. Professor Sample stated that some situations present clear conflicts that properly lead to recusal, but there are also other situations in which judges do not recuse themselves when they should. He noted a recent example involving a federal bankruptcy judge who failed to disclose his personal relationship with a partner at a local law firm handling many cases before that judge and the other members of his court. The panelists additionally identified two Supreme Court cases concerning recusal: (1) Caperton v. A.T. Massey Coal Co., and (2) Williams v. Pennsylvania. Judge Martin noted that recusal-related decision making could actually depend on the type of court in which the issue is presented. Moreover, the type of court could affect the extent to which judges might feel they need to recuse themselves. For example, state courts often can substitute one judge for another, even to the point of having judges sit by designation on state courts of last resort. Nevertheless, the Supreme Court of the United States does not have the same luxury, which could increase the difficulty of its members recusing themselves. Judge Martin emphasized the importance of that consideration when analyzing recusal-related decisions.

    Joseph Davis

    George Washington University Law School

    Joseph Davis is a current law student at the George Washington University Law School. 

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