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November 16, 2017 Articles

Covert Motivations Raise Ethical Questions in Motions to Disqualify Women Judges

By Raymond J. McKoski

Judges have suffered attacks on their impartiality solely because they are women. For example, motions seeking to disqualify judges have alleged that a female judge should not preside over sex discrimination cases or sexual assault cases because a woman judge will automatically favor a female victim. See, e.g., Johnson v. State, 430 S.E.2d 821, 822 (Ga. Ct. App. 1993). Similarly, litigants have claimed that "motherly instincts" should preclude a woman judge from hearing a case involving child abuse. See, e.g., Allee v. Morrow, 28 P.3d 651, 652 (Or. Ct. App. 2001). Reminiscent of an argument offered against allowing women to serve as jurors, a wife in a divorce action sought disqualification of a woman judge because she would likely be improperly influenced by an attractive man like the wife's husband. Rivero v. Rivero, 216 P.3d 213, 233 (Nev. 2009). Even more reprehensible, another litigant submitted an affidavit in support of a disqualification motion alleging that the judge's bias against the affiant was the result of the judge acting like a "woman scorned." Sworn Affidavit of Bradlee Dean, Dean v. NBC Universal, No. 2011 CA 006055B (D.C. Super. Ct. July 9, 2012).

The bad news is obvious: Inexcusable and contrived claims of partiality based on sex undermine the legitimacy of the judiciary and serve to resurrect long-abandoned stereotypes of women in general. The good news is that in the later part of the twentieth century and first decade of the twenty-first century, these baseless attacks on the integrity of female judges have declined from their heyday.

However, in many states an avenue of judicial disqualification exists by which lawyers and litigants may remove a woman judge from a case without disclosing that the true reason for the recusal request is the judge's sex. Eighteen states permit the automatic disqualification of a trial court judge simply upon the timely motion of a party: Alaska, Arizona, California, Idaho, Illinois, Indiana, Minnesota, Missouri, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Texas, Washington, Wisconsin, and Wyoming. The federal courts have not adopted an automatic disqualification process. For a description of the preemptory challenge system, see Raymond J. McKoski, "Disqualifying Judges When Their Impartiality Might Reasonably be Questioned: Moving Beyond a Failed Standard," 56 Ariz. L. Rev. 411, 468–72 (2014).

Many of these states merely require an affidavit from the moving party mechanically stating that the litigant believes that the judge is so prejudiced that a fair trial is impossible. Other peremptory challenge states require no affidavit or other declaration that the challenged judge is biased. Thus, in most states that allow preemptory judicial disqualification, litigants and lawyers may invoke the recusal procedure for the covert purpose of removing a judge because of the judge's "undesirable" personal characteristic, such as race, sex, or gender identity.

Arizona has addressed this shortcoming in peremptory disqualification rules by requiring that anyone who files a motion for the automatic disqualification of a trial judge certify that "the request is made in good faith and not . . . for reasons of race, gender or religious affiliation."Ariz. R. Crim. P. 10.2; see also Ariz. R. Civ. P. 42(f). A more comprehensive provision might track language in the 2007 ABA Model Code of Judicial Conduct and require a movant to affirm that the recusal request is not based on the judge's "race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, [or] marital status. . . ."Model Code of Judicial Conduct R. 2.3(B) (Am. Bar Ass'n 2007). Even if ignored or violated on occasion by persons seeking automatic recusals, a provision similar to that of Arizona announces to the public that challenging a judge's impartiality because of an immaterial personal characteristic is inimical to the American system of justice.

As the states adopting the procedure have concluded, the peremptory disqualification of judges may increase public confidence in the judiciary. But the legal system cannot countenance rendering a judge ineligible to carry out his or her sworn duty because of the judge's race, sex, gender identity, religion, or other irrelevant personal characteristic. All persons are equal before the law, and that includes judges.

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