July 01, 2013

The History of Judicial Disqualification in America

By Richard E. Flamm

Perhaps the most famous quotation about history that has ever been penned is philosopher George Santayana’s admonition that “those who cannot remember the past are condemned to repeat it.”1 Judges tend to be fairly avid historians; yet how many adjudicators—when called upon to decide whether they should recuse themselves from presiding over a proceeding—have considered the fact that, at least since Biblical times, their predecessors have been asking themselves the very same question?

According to the Babylonian Talmud, “every judge who judges a case with complete fairness, even for a single hour, is credited by the Torah as though he had become a partner to the Holy One” in the work of creation.2 It has always been understood, however, that not all judges will decide every case with complete fairness—as a result, edicts designed to ensure judicial impartiality have been recorded since ancient days. Under early Jewish law, for example, a judge was not to participate in any case in which a litigant was a kinsman, a friend, or someone whom the judge personally disliked.3

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