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

Roman law was even more expansive. Pursuant to the Code of Justinian, a party who believed that a judge was “under suspicion” was permitted to “recuse” that judge prior to the time issue was joined.4 This power on the part of early litigants to effect a judge’s “recusal” provided the basis for the broad recusal laws that still exist in many civil law countries today.5

The Common Law Standard

The common law judicial disqualification standard was initially advanced by Bracton, who, like early Roman scholars, believed that a litigant should be allowed to disqualify a judge on the basis of even a suspicion of bias, which could arise from many different causes, including where the plaintiff was a “table companion” of the judge, or an enemy of his kinsman.6 But Bracton’s effort to incorporate this civil law notion into English jurisprudence ultimately proved unsuccessful.7 Blackstone, for one, determined that a judge was not subject to disqualification for an appearance of bias or any other basis for “suspicion”—or even for actual bias toward one of the litigants or his counsel. A judge could be disqualified only for pecuniary interest in a cause.8

The refusal of early English courts to recognize bias as a basis for judicial disqualification extended even to cases involving familial relationships between judges and parties. As to such matters, it was decreed that, while a juror might be disqualified by certain types of familial relationships, a judge would not be.9 Thus, in marked contrast to the civil law system of “recusation,” the common law notion of what constituted good grounds for seeking a judge’s disqualification was straightforward and simple in the extreme: A judge would be disqualified for direct financial interest in the cause before him,10 and for absolutely nothing else.11

In a 1920 address to the Cambridge University Law Society, Lord Justice Scrutton observed that the English were inclined to treat the incorruptibility of judges as such a matter of course that it was superfluous to even mention it.12 As even Blackstone had acknowledged, however, a judge could be disqualified from presiding over a proceeding if he possessed a direct pecuniary interest in it. As to such matters, Lord Coke set the standard for his time with his admonition that “no man shall be a judge in his own case”13—an edict that ultimately became one of the guiding precepts of Anglo-American jurisprudence.14

Early construction of Coke’s edict led, in Bonham’s case, to the disqualification of a physicians’ review board that had retained the fines it was empowered to levy.15 Coke’s edict also led to the “laying by the heels” of a mayor who had presided over the ejectment of one of his own tenants,16 the quashing of a court order on the grounds that one of the judges named in the “stile of [the] Court” occupied the office that was the subject of the matter before him,17 and the overturning of a court decision that benefited the community in which two sitting judges lived.18

By the 19th century, however, the English attitude toward judicial disqualification had begun to grow more flexible. Initially, courts of the realm acted slowly, by expanding the available grounds for disqualification to include situations in which the challenged judge possessed only a remote proprietary interest in a case, as opposed to a direct and substantial one.19 In 1829, Bentham proposed that a judge should recuse himself not only when he possessed a pecuniary interest in a matter, but whenever he was exposed to any cause of partiality, including intimate acquaintance, enmity, or family relationship.20 By the middle of the 19th century, English sentiment regarding the propriety of judges sitting in circumstances other than those involving their own pocketbook had also begun to undergo change. By way of example, in an 1866 case, the Queen’s Bench indicated, albeit in dicta, that a judge should be ordered to recuse himself whenever there was a real likelihood that he harbored a bias in favor of or against one of the parties to the cause he had been called on to decide;21 and, not long thereafter, judicial bias became an accepted ground for disqualification in England.22

The Early American Standard

In the pre-Revolutionary American Colonies, as in England, the only accepted ground for disqualifying a judge was pecuniary interest;23 and, for years following independence, American law—like that of the mother nation—admitted of very few grounds for seeking a judge’s disqualification.24 In fact, the initial version of the original federal judicial disqualification statute, enacted in 1792, called for a judge to be disqualified only when he was “concerned in interest,” had “acted in the cause,” or had been “of counsel” in the cause.25

But an evolution of thinking analogous to what was occurring in England also took place in the United States. Congress amended the federal disqualification statute on a great many occasions—enlarging the grounds for seeking judicial disqualification virtually every time.26 In accordance with the expanding disqualification right, the U.S. Supreme Court read the Constitution to forbid a decision maker from hearing a case not only when she had a personal stake in the outcome,27 but whenever it could be shown that she had become personally embroiled with a party,28 or was involved in the litigated incidents.29

Public Awareness of Judicial Disqualification Practices

Congress had occasion to consider the subject of judicial disqualification many times, and so had many state legislatures, but the subject has only occasionally attracted widespread public attention. One example occurred in Montana, in the early 1900s, when a judge who was predisposed in favor of a copper company enjoined its adversary, and the Montana Supreme Court ruled that a judge cannot be disqualified for bias. Montana’s legislature responded by passing a law permitting judges to be challenged on that basis.30

In the late 1960s, the subject of judicial disqualification came into prominent public focus again when opponents of the U.S. Supreme Court nomination of Judge Clement Haynsworth seized upon the fact that he had declined to recuse himself from presiding over certain high-profile cases as a reason for denying him the appointment.31 Judge Haynsworth’s reluctance to recuse himself from cases was not unusual for the time;32 in fact, Justice Harry Blackmun—who was eventually confirmed for the same seat—had also participated in cases in which he possessed a financial interest in a party. Nevertheless, notoriety arising from this situation—as well as from a number of highly publicized cases involving other judges’ refusal to recuse themselves despite apparent conflicts of interest33—began to kindle public sentiment for altering the standards for disqualifying federal judges.34

In response, Justice Lewis F. Powell Jr.—who was then president of the American Bar Association—proposed that a new Judicial Code of Conduct be formulated, and a special ABA committee was appointed for that purpose.35 In 1973, the ABA Model Code of Judicial Conduct—which, among other things, called for judicial disqualification whenever a judge’s impartiality could “reasonably be questioned”—was adopted,36 with only slight modification,37 as the governing standard of conduct for all federal judges except justices of the U.S. Supreme Court.38

At first, some judges did not perceive that there was any conflict between the Code of Conduct and the primary federal judicial disqualification statute that was then in effect, 28 U.S.C. § 455.39 It soon became apparent, however, that the Code’s ethical requirements were far more stringent than the statute’s, forcing federal judges who had been called upon to decide judicial disqualification motions to choose between disparate and inconsistent legal and ethical imperatives.40

The House Committee on the Judiciary concluded, with admirable succinctness, that this situation placed federal judges on the “horns of a dilemma.”41 The committee noted that, apart from the problem posed by the conflicting ethical provisions, the standard for deciding judicial disqualification motions was ambiguous.42 Congress thereupon acted to reconcile the federal statutory scheme with the Judicial Code,43 as well as to broaden the grounds for disqualification,44 by rewriting § 45545 in such a way as to alter that statute to the point of virtual repeal.46

One might have assumed that the considerable efforts that Congress, as well as a number of state legislatures, had expended in revising their disqualification statutes to bring them into harmony with the Code would have resulted in there being less focus on the question of when a judge should recuse herself from presiding over a proceeding than there used to be. In recent years, however, questions about the propriety of a judge sitting in a case have garnered public notoriety on a number of occasions.

The subject of judicial disqualification briefly took center stage in 1995, when prosecutors initially demanded that Judge Lance Ito disqualify himself from presiding over the remainder of the O.J. Simpson murder trial. Public interest in the question of when a judge should recuse himself resurfaced in 2004, following Justice Antonin Scalia’s much-publicized duck-hunting trip with Vice President Cheney only weeks after the Supreme Court had agreed to take up Mr. Cheney’s appeal in lawsuits questioning his handling of the administration’s energy task force; and again in 2005, when former House Minority Leader Tom DeLay successfully moved to disqualify a Texas state court judge from presiding over DeLay’s criminal trial on the grounds that the judge had contributed to MoveOn.org—a political organization that had purportedly ridiculed DeLay.

More recently still, the subject of judicial disqualification captured public attention in Michigan after the state’s then chief justice questioned, in In re JK,47 whether fellow Justice Elizabeth Weaver should be allowed to sit in the case.48 Justice Weaver had been told that Michigan’s judicial disqualification court rule, MCR 2.003, did not apply to Supreme Court justices; that it was an unwritten tradition that the decision as to whether to recuse was up to the challenged justice alone; and that no reasons for the decision whether to participate in a case were to be given.49 She concluded, however, that these “unwritten traditions” violated the state’s constitution and urged her colleagues to adopt clear and enforceable recusal procedures,50 as well as to provide reasons for their recusal decisions in every case.51

During the years that followed, various members of Michigan’s Supreme Court weighed in on issues pertaining to the subject of judicial disqualification.52 Their debates—which ultimately culminated in MCR 2.003 being amended53 to, among other things, make the “appearance of impropriety” a cognizable ground for disqualification of a Michigan judge or justice54—resulted in broad public awareness, on the part of Michigan’s populace, of the significance of judicial disqualification.55

Judicial Disqualification Law Today

The general public may not normally pay much attention to judicial disqualification matters, but the subject has often been considered by state legislatures. In fact, because the prescription of available grounds for judicial disqualification is generally considered to be a matter of legislative prerogative,56 virtually every state in the union now has at least some statutory law on the subject on its books,57 and some states have adopted multiple judicial disqualification statutes.58 Judicial disqualification has also been much on the minds of legal scholars59—as well, of course, as state and federal judges, who have issued thousands of decisions on the subject during the past quarter century alone.60

Case law on disqualification may be bountiful, but any attempt to draw a definitive conclusion from the precedents that have been published about the prospects for success in securing the removal of a particular judge in a particular case would be perilous at best. This is so in part because, while judges often voluntarily elect to take themselves off of cases, a judge who recuses herself rarely issues an opinion explaining her reasons for doing so;61 and, even when such an opinion is issued, it is often both brief and unpublished.62

In contrast, judges who decline to disqualify themselves often write lengthy opinions explaining their rationale.63 For this reason—and because reported cases in which appellate courts have ordered lower court judges to step away from cases are, if not hen’s teeth rare, very few and far between—the published opinions on this subject, far from accurately portraying the full spectrum of judicial thinking as to when a judge should recuse herself from hearing a particular case or type of case, have been said to reflect little more than “an accumulating mound” of reasons for denying disqualification motions.64

As has been noted, the available grounds for seeking the disqualification of an American judge have expanded over the years. However, expansion of the judicial disqualification right has not come without a cost. Whereas at common law it was almost never possible to demonstrate good cause for disqualifying a judge, the rigid common law rule did have the advantage of clarity. With each expansion of the common law rule, troubling questions have been raised as to precisely how much impartiality a litigant has the right to reasonably expect of a judge.65 Many of these questions have yet to be satisfactorily answered.66

It has been noted, moreover, that modern American judicial disqualification case precedents are replete with inconsistencies.67 As one well-known law professor has pithily pointed out, “our present law finds favoritism to distant relatives more upsetting than loyalty to Harvard, discourages investigation of social or political bias on the bench, and generally rejects disqualification for such things as past political commitment.”68

In light of the inconsistencies inherent in the nation’s judicial disqualification jurisprudence, it has been said that the applicable precedents suggest the absence of a sound theoretical base.69 As a consequence, even today—thousands of years after judges first began grappling with questions as to when an adjudicator may properly sit on a case—the theoretical underpinnings of American judicial disqualification jurisprudence remain murky70 and unsettled.71

In the end, most judges who have been called upon to decide whether they have a duty to sit on a particular case—or to step away from it—have done their level best to decide that question, as they do all other questions, with complete fairness. In so doing, they may not expect to be treated as though they have joined the Holy One in the work of creation. The fact is, however, that there may be no time when the need for a judge to strive to embody both the ideal of complete fairness and an appearance of impartiality is more compelling than when a litigant has called into question the ability of that judge to be fair and impartial.

Endnotes

1. G. Santayana, Reason in Common Sense, The Life of Reason (1905–06).

2. Shabbath 10a (Talmud Bavli) (quoted in 1 E. Quint & N. Hecht, Jewish Jurisprudence 6 (1980)). See also Johnson v. Dist. Court, 674 P.2d 952, 956 (Colo. 1984).

3. The Code of Maimonides, Bk. XIV, ch. 23, 68–70 (A. Hershman trans., 1949).

4. Corpus Juris Civilis, Codex, lib. 3, tit. 1, no. 16 (“Although a judge has been appointed by imperial power, yet because it is our pleasure that all litigations should proceed without suspicion, let it be permitted to him, who thinks the judge under suspicion, to recuse him before issue is joined”) (translated in Harrington Putnam, Recusation, 9 Cornell L.Q. 1, 3 n.10 (1923)).

5. See Note, Disqualification for Interest of Lower Federal Court Judges: 28 U.S.C. § 455, 71 Mich. L. Rev. 538, 539 (1973).

6. 6 Henry de Bracton, Legibus et Consuetudinibus Angliae 249 (Twiss ed., 1883). See also Note, Caesar’s Wife Revisited—Judicial Disqualification After the 1974 Amendments, 34 Wash. & Lee L. Rev. 1202 n.8 (1977).

7. See, e.g., Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820 (1986).

8. 3 Willliam Blackstone, Commentaries on the Laws of England 361 (“the law will not suppose the possibility of bias or favor in a judge, who is sworn to administer impartial justice, and whose authority greatly depends upon that presumption”). See also Liteky v. United States, 114 S. Ct. 1147, 1151 (1994) (“judicial recusal for bias did not exist in England at the time of Blackstone”).

9. See, e.g., Brookes v. Rivers, 1 Hardres 503, 145 Eng. Rep. 569 (Ex. 1668) (a judge was not required to recuse himself from presiding over his brother-in-law’s case “for favor shall not be presumed in a judge”).

10. See The Queen v. Justices of Herefordshire, 6 Q.B. 753, 115 Eng. Rep. 284 (1845). Cf. Mustafoski v. State, 867 P.2d 824, 832 (Alaska App. 1994).

11. Del Vecchio v. Ill. Dep’t of Corr., 31 F.3d 1363, 1372 (7th Cir. 1994). See also Bd. of Justices v. Fennimore, 1 N.J.L. 190 (1793). Cf. Comment, Meeting the Challenge: Rethinking Judicial Disqualification, 69 Cal. L. Rev. 1445, 1480–81 (1981) (noting that American judicial disqualification jurisprudence emerged from this English base).

12. Gordon Borrie, Judicial Conflicts of Interest in Britain, 18 Am. J. Comp. L. 697, 708 (1970).

13. See 1 Lord Coke, Institutes of the Lawes of England *141a.

14. See John P. Frank, Disqualification of Judges, 56 Yale L.J. 605, 610 (1947).

15. Dr. Bonham’s Case, 8 Co. 114a, 77 Eng. Rep. 638 (K.B. 1608).

16. Anonymous, 1 Salk. 396, 91 Eng. Rep. 343 (K.B. 1698).

17. Case of Foxham Tithing, 2 Salk. 607, 91 Eng. Rep. 514 (K.B. 1706).

18. Between the Parishes of Great Charte & Kennington, 2 Strange 1173, 93 Eng. Rep. 1107 (K.B. 1726).

19. See generally Caesar’s Wife Revisited, supra note 6, at 1202 n.11.

20. See J. Bentham, Rationale of Judicial Evidence, bk. 9, pt. 3, ch. 3 (J.S. Mill ed., 1827). Cf. John Leubsdorf, Theories of Judging and Judge Disqualification, 62 N.Y.U. L. Rev. 237, 248 (1987).

21. The Queen v. Rand, L.R.-Q.B. 230, 232–33 (1866). See also Dimes v. Proprietors of the Grand Junction Canal, 10 Eng. Rep. 301, 313 (H.L. 1852).

22. Robert A. Levinson, Peremptory Challenges of Judges in the Alaska Courts, 6 UCLA-Alaska L. Rev. 269, 271 (1977) (“[i]n 1875, the broader doctrine of disqualification for bias was first adopted in England”).

23. See, e.g., In re Dodge Mfg. Co., 77 N.Y. 101, 33 Am. St. Rep. 579 (1879). See also Michael Nevels, Bias and Interest: Should They Lead to Dissimilar Results in Judicial Qualification Practice?, 27 Ariz. L. Rev. 171, 179 (1985).

24. Idaho v. Freeman, 507 F. Supp. 706 (D. Idaho 1981). Cf. Paul B. Lewis, Systemic Due Process: Procedural Concepts and the Problem of Recusal, 38 Kan. L. Rev. 381, 387 (1990).

25. Act of May 8, 1792, ch. 36, § 11, 1 Stat. 278.

26. See Act of Mar. 3, 1821, ch. 51, 3 Stat. 643; Act of Mar. 3, 1891, ch. 517, § 3, 26 Stat. 826 (codified as amended at 28 U.S.C. § 47 (1982)); Act of Mar. 3, 1911, ch. 23, § 20, 36 Stat. 1090; Act of Mar. 3, 1911, ch. 23, § 21, 36 Stat. 1090; Act of June 25, 1948, ch. 646, § 455, 62 Stat. 908; Act of Dec. 5, 1974, Pub. L. No. 93-512, 88 Stat. 1609. These acts have been codified, as amended, at 28 U.S.C. §§ 144, 455 (1982). See generally Freeman, 507 F. Supp. 706.

27. See, e.g., Aetna Life Ins. Co. v. Lavoie, 106 S. Ct. 1580, 1586–87 (1986).

28. See, e.g., Mayberry v. Pennsylvania, 400 U.S. 455, 91 S. Ct. 499 (1971).

29. Goldberg v. Kelly, 397 U.S. 254 (1970). See generally Leubsdorf, supra note 20.

30. See Frank, supra note 14, at 608.

31. See, e.g., Brunswick Corp. v. Long, 392 F.2d 337 (4th Cir.), cert. denied, 391 U.S. 966 (1968) (Judge Haynsworth was alleged to have joined in the court’s opinion even though he owned $16,000 worth of Brunswick stock). See also Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv. L. Rev. 736 (1973).

32. See Nevels, supra note 23, at 181 & n.102.

33. See, e.g., Laird v. Tatum, 409 U.S. 824, 93 S. Ct. 7 (1972).

34. See Idaho v. Freeman, 507 F. Supp. 706 (D. Idaho 1981).

35. See Margoles v. Johns, 660 F.2d 291, 299 n.1 (7th Cir. 1981) (per curiam), cert. denied, 455 U.S. 909 (1982). See generally Nevels, supra note 23, at 181 n.109.

36. Warren E. Burger, Report of Proceedings of the Judicial Conference of the United States 10 (Apr. 5–6, 1973). See also United States v. Haldeman, 559 F.2d 31, 130 n.284 (D.C. Cir. 1976), cert. denied, 431 U.S. 933 (1977).

37. See Atkins v. United States, 556 F.2d 1028 (Ct. Cl. 1977), cert. denied, 434 U.S. 1009 (1978).

38. The U.S. Supreme Court is not under the jurisdiction of the Judicial Conference. See Burger, supra note 36.

39. See, e.g., Laird, 409 U.S. 824 (memorandum of Justice Rehnquist). Cf. Bradley v. Milliken, 426 F. Supp. 929, 932 (E.D. Mich. 1977).

40. See generally Disqualification of Judges and Justices in the Federal Courts, supra note 31, at 868 (“federal judges were governed by disparate ethical and statutory standards”).

41. Id.

42. See Idaho v. Freeman, 507 F. Supp. 706, n.9 (noting that, while a judge was to recuse whenever he had a substantial interest, the word “substantial” was undefined and subject to myriad interpretations, especially when viewed from the subjective standpoint of the judge).

43. See, e.g., Margoles v. Johns, 660 F.2d 291, 299 (7th Cir. 1981) (per curiam); Atkins v. United States, 556 F.2d 1028 (Ct. Cl. 1977) (noting that the purpose of the 1974 revision was to conform statutory law with the ABA Code), cert. denied, 434 U.S. 1009 (1978); Bradley, 426 F. Supp. at 932 (noting that Congress had sought to resolve what it perceived as a judicial dilemma whereby a judge was forced to decide either the legal issue or the ethical issue at his peril).

44. See, e.g., Durhan v. Neopolitan, 875 F.2d 91, 96–97 (7th Cir. 1989).

45. Act of Dec. 5, 1974, Pub. L. No. 93-512, 88 Stat. 1609 (codified as amended at 28 U.S.C. § 455).

46. See United States v. Alabama, 828 F.2d 1532, 1540 (11th Cir. 1987) (per curiam), cert. denied sub nom. Bd. of Trs. of Ala. State Univ. v. Auburn Univ., 108 S. Ct. 2857 (1988).

47. 468 Mich. 202, 661 N.W.2d 216 (2003).

48. See Griev. Adm’r v. Fieger, 477 Mich. 1228, 1240–41, 729 N.W.2d 451, 462, 2006 Mich. LEXIS 3037, at *30 (Mich. 2006) (Weaver, J., dissenting).

49. See id. at 1241.

50. Id. at 1242. See also Jordan v. Dep’t of Labor & Econ. Growth, 480 Mich. 869, 738 N.W.2d 703, 2007 Mich. LEXIS 2139, at *7–8 (2007) (Weaver, J., concurring) (“Without a record of a justice’s reasons to not participate in a case, how can future litigants be guaranteed that the same reasons are not present in their cases? . . . while it appears to continue to be for some justices a ‘tradition’ of this Court for a justice who disqualifies himself from a case to not give written reasons, it is a ‘tradition of secrecy’ that must for all justices end now.”).

51. See, e.g., Cooper v. Auto Club Ins. Ass’n, 739 N.W.2d 631, 2007 Mich. LEXIS 2602, at *1 (2007) (Weaver, J.).

52. See, e.g., U.S. Fid. Ins. & Guar. Co. v. Mich. Catastrophic Claims Ass’n, 773 N.W.2d 243, 253 (2009) (Young, J., dissenting) (“Few issues have been the subject of more continual and contentious debate on this Court in the last decade than the appropriate standard that should apply in the disqualification of justices.”).

53. See, e.g., In re MKK, 2009 Mich. App. LEXIS 2622, at *26 n.6 (Dec. 22, 2009).

54. Pellegrino v. Ampco Sys. Parking, 2010 Mich. LEXIS, at *2–3 (Mich. June 28, 2010).

55. Griev. Adm’r, 477 Mich. at 1242–43.

56. See, e.g., Pierce v. Charity Hosp. of La. at New Orleans, 550 So. 2d 211, 213 (La. App. 1989); Solberg v. Super. Court, 19 Cal. 3d 182, 192 (1977).

57. See, e.g., Frank, supra note 14.

58. In Missouri, for example, Mo. Rev. Stat. § 545.660—which was adopted in response to Jim v. State, 3 Mo. 147 (1832), a case in which a slave had been charged with murder and his “master” was the judge—prescribes that judges are disqualified from presiding over cases whenever they have an interest in the cause. See State v. Fortner, 84 S.W.3d 507 (Mo. App. 2002). Other Missouri judicial disqualification statutes include Mo. Rev. Stat. §§ 508.090–508.140.

59. By 1947, more than 60 law review articles on the subject had appeared. See Frank, supra note 14, at 606 n.4. New articles are published every year.

60. See R. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges (2d ed. 2007).

61. See, e.g., Advocacy Org. v. Auto Club Ins. Ass’n, 472 Mich. 91, 97–98 (2005) (Weaver, J., concurring).

62. See, e.g., Allen v. Pfizer, Inc., Cause No. 05CV706WDS (S.D. Ill. 2005) (“This undersigned judge hereby RECUSES”).

63. Compare, e.g., United States v. Salemme, 164 F. Supp.2d 86, 111 (D. Mass. 1998) (rejecting a claim that the fact that the judge found it necessary to write a 73-page opinion on recusal bore “witness to the fact that there is a substantial issue”), with Ex Parte Ellis, 275 S.W.3d 109, 2008 Tex. App. LEXIS 9722, at *85–86 (2008) (Henson, J., dissenting) (“[o]ne might [ask why, if the challenged justice’s lack of bias] is so obvious, a 38-page opinion, including personal attacks on the dissenting justices, was necessary to explain why the motion to recuse was denied”).

64. See Leubsdorf, supra note 20, at 244; Jeffrey W. Stempel, Rehnquist, Recusal and Reform, 53 Brook. L. Rev. 589 (1987).

65. For example, if a judge’s relationships can be disqualifying, how close must such relationships be? See Leubsdorf, supra note 20, at 239 (“[o]ne cannot decide when judges should not sit without developing models of how judges should behave when they do”); Meeting the Challenge, supra note 11, at 1478 (“[t]he most that we may reasonably ask of the judicial mind is to make a special effort to be aware of the existence of leanings or preconceptions and to ignore them whenever possible”).

66. See, e.g., Charles Malarkey, Judicial Disqualification: Is Sexual Orientation Cause in California?, 41 Hastings L.J. 695, 698 n.19 (1990).

67. See Shirley S. Abrahamson, Commentary on Jeffrey M. Shaman’s The Impartial Judge: Detachment or Passion?, 45 DePaul L. Rev. 633, 645 (1996) (“Because our aspirations for judges are themselves paradoxical, judicial disqualification rules are general and ambiguous.”).

68. Leubsdorf, supra note 20.

69. See Meeting the Challenge, supra note 11, at 1480 (the system may demand disqualification of a judge when she owns a single share of stock in a corporate party yet allow participation when she consistently votes pro-taxpayer or pro-consumer).

70. Leubsdorf, supra note 20, at 238 (“lawyers and lawmakers have tended to erect a set of cloudy distinctions that disqualify an occasional judge while allowing many others to sit”).

71. Meeting the Challenge, supra note 11, at 1480–81.