Perhaps it’s a term you’ve heard on Law & Order. Or you may remember the calls for withdrawal of Supreme Court Justices Elena Kagan and Clarence Thomas from hearing The Affordable Health Care Act case due to alleged conflicts of interest. Both Justices remained on the case, although critics were quite vocal about their participation-Kagan, for her role as Solicitor General in the Obama administration when the Act was signed into law, and Thomas, for failing to disclose his wife’s income from organizations opposed to the Act. Demands for their recusals may have split along partisan lines, but how important is public perception of judicial impartiality, whether a high profile case or not? And what exactly is judicial recusal?
Simply stated, recusal is the act of a judge removing him or herself from a case to avoid the appearance of judicial bias or conflict of interest. A fair trial demands the participation of a judge who can impartially preside over legal proceedings, whether criminal or civil in nature. If a party to the proceeding (plaintiff, defendant, respondent, attorney) perceives judicial bias or possible conflict of interest, that party may seek recusal of the judge by request or motion. Under what circumstances are recusal proceedings initiated, and how compelling must the appearance of bias or conflict be for removal from the case?
All states have codes of judicial conduct that govern the activities of judges to guarantee the integrity of the justice system. Most states follow guidelines from the American Bar Association Model Code of Judicial Conduct, which direct judges to recuse themselves from legal proceedings if their impartiality may be reasonably questioned. There does not need to be a definitive showing of prejudice or bias, merely a reasonably drawn inference that the judge may not be able to execute legal duties impartially, given a personal, professional, or financial interest.
Who decides whether an allegation of bias or conflict is sufficient to warrant recusal of the challenged judge? You might be surprised to learn that the decision to recuse remains with the individual judge, regardless of how the question of possible bias emerged. The judge may disclose a potential conflict, or one of the parties may raise it. Regardless, the judge alone determines whether a conflict exists, and whether he or she can preside over the proceedings impartially and equitably.
Even if the codes of conduct for judges grant them broad discretion regarding self-disqualification from cases, there are obvious circumstances that warrant recusal. A personal conflict of interest includes legal proceedings in which the judge, a family member, or close friend is a party to the action, or has some stake in the legal outcome. A judge’s extra-judicial activities or past issue advocacy may also challenge the appearance of neutrality, depending on the nature of the legal action. For example, a judge should not preside over a criminal case in which the defendant is a family member, but should the judge also withdraw from a case involving a past political opponent involving election fraud?
A professional conflict of interest involves proceedings in which former clients, judicial peers, past employers and/or colleagues are parties to the case or have some stake in the legal outcome. For example, if a judge is assigned to a case involving a former client represented while practicing law, the judge should elect to recuse. Professional conflicts of interest can also extend to professional relationships of family members and judicial staff. Further, an elected judge should opt for recusal from any legal proceeding involving campaign staff, volunteers, members of political action committees, or anyone else associated with getting the judge elected. If the judge was appointed, he or she should refrain from hearing cases involving the appointing executive or political organization.
Judicial campaigns present another significant conflict of interest challenge-the unprecedented amount of money in state judicial elections. Campaign contributions by a specific litigant, attorney, or issue advocacy group should be disclosed and monitored to prevent the appearance of bias or favor by the recipient judge. Other financial conflicts include legal proceedings impacting a judge’s personal or family assets, investments, and other financial business affiliations. Clearly, recusal would be in order if a judge is assigned to a case involving a company in which he or she holds significant stocks.
While many of these circumstances are obvious, some are more nuanced. We must rely on our judges to police themselves, to disclose potential conflicts of interest, and err on the side of disqualifying themselves from any legal proceedings where their impartiality may be reasonably questioned. Our notion of a fair and unbiased legal system demands it.
To find rules of judicial conduct in your state governing recusal, look for links to organizations like the State Bar Association or the Administrative Office of Courts on CourtReference under the Self Help and Legal Research category.