If you follow legal news, you've probably heard the word "recusal" thrown around lately.
Take, for example, the New York judge who earlier this year ordered former President Donald Trump to pay about $500 million in civil penalties for lying about how much he made to gain a business advantage. Yesterday, he was called to step down from the case because of a conversation with another lawyer, which the judge brushed aside as a "nothingburger."
But can he just refuse to recuse? And why did people want him to? There have been countless other recent examples of judges who have been called on to step aside from a case or "recuse" themselves. So, we'll give you a little primer on what exactly judicial recusals are and the problems with how they actually play out.
The Impartial Judge
In the United States, federal and state courts emphasize maintaining a "perception of impartiality." This concept goes beyond actual impartiality; it encompasses the idea that the judicial system should appear unbiased to the public. This perception is crucial for maintaining public trust and confidence in the legal system. As a result, judges are expected to remain neutral and unbiased to ensure a fair and trustworthy administration of justice.
One of the primary ways to maintain actual and perceived impartiality is through recusals. Judges and other court officials are expected to avoid situations where their impartiality might reasonably be questioned. This includes cases involving personal connections or financial interests. To guide this process, courts have established recusal rules – procedures and guidelines that determine when a judge should withdraw from a case due to conflicts of interest, bias, or other factors that may impact their impartiality.
A major way to maintain the actual or perceived impartiality is through recusals. Judges (and other court officials) are expected to avoid situations where their impartiality might reasonably be questioned, such as cases involving personal connections or financial interests.
Recusal Rules
Courts have their own recusal rules, which are procedures and guidelines that govern when a judge should withdraw from a case due to a conflict of interest, bias, or other reasons that may impact their impartiality.
In federal courts, there is a little more uniformity. Recusal rules are governed by federal law (28 U.S.C. § 455), which states that a judge (or justice or magistrate) must disqualify themselves in any proceeding where their impartiality might reasonably be questioned. More helpfully, the statute goes on to outline a number of different scenarios that would count. To name a few, the judge is supposed to recuse themselves if:
- The judge has a personal bias or prejudice about one of the parties.
- They had personal knowledge about a fact that’s disputed in the evidence of a trial.
- They had previously been involved in the case before when they were a lawyer.
- The judge has a personal interest in the outcome of the case.
- They or their spouse or child have a monetary interest in the case.
- They are related to any of the parties.
But the rules can vary in non-federal courts (that is, state courts). All state courts have recusal guidelines in place, and the American Bar Association has model codes of judicial conduct that it encourages states to adopt to govern recusals. But state courts don’t have to do this, and as a result, both the laws and actual practice of recusal in state courts are not always what they arguably should be.
Examples
To illustrate the nuanced nature of recusal decisions in state courts, consider the following examples. Below are cases where state courts have found it appropriate for a judge to recuse themselves:
- The judge has expressed their opinion about the merits of a case, such after having heard the defendant in question testify at another trial.
- A party in the case has a pending lawsuit against the judge.
- The judge has a close relationship (business or personal) with one of the attorneys.
- The case involves the judge’s opponent in a judicial election.
But the situations can be very nuanced, and the line is a thin one to toe. If the above case results seem obvious, what about the ones below? These are cases where state courts have held that recusal is not necessary:
- The judge presided over a new trial where he presided over the original trial where a mistrial was declared.
- The judge has pushed the parties to settle and they’ve refused.
- The judge has criticized or otherwise expressed dissatisfaction with one of the parties.
- The judge’s view on how “serious” the crime involved is.
- The fact that a judge or his family has been a victim of the same type of crime on trial.
In some cases, recusal is mandatory (e.g., financial interest), while in others, it's at the judge's discretion based on whether their impartiality might reasonably be questioned.
Rules Often Disregarded
Despite the existence of recusal rules in both federal and state courts, enforcement can be problematic. In many cases, the grounds for recusal are known only to the judge, making it difficult to ensure compliance. Suppose a judge doesn't disclose potential conflicts or initiate a self-recusal. In that case, they may continue presiding over a case, maintaining the appearance of impartiality while potentially compromising the interest of justice.
This, in turn, wouldn’t be such a big problem if judges didn’t, in fact, have the nasty habit of hiding potential grounds for recusal. According to experts and data, in the real world, judges recusing themselves when they should is the exception rather than the rule. And to make matters worse, attorneys often fail to ask them to do so (by filing motions for recusal).
A Look at Data
Due to the subjective, contentious, and hidden nature of judicial recusals, it’s hard to get accurate data on the issue. It’s also not something that’s extensively documented. But one place to start is the work of certain “legal empiricists” who have studied the issue. A legal empiricist is a scholar who uses empirical methods—data collection and analysis—to study the legal system and its effects. They aim to understand how law operates in practice, rather than just focusing on legal theory or doctrine.
Associate law professor Dane R. Thorley of Brigham Young is one such legal empiricist. His expertise on judicial behavior (particularly how courtroom practices influence it) and his empirical research (including randomized field experiments), provides valuable insights into this area.
One of Professor Thorley’s articles, "The Failure of Judicial Recusal and Disclosure Rules: Evidence from a Field Experiment," examines the efficacy of judicial self-recusal and disclosure rules in U.S. courts, particularly in cases involving campaign contributions from attorneys. Thorley argues that these rules are inadequate due to the legal, institutional, and social dynamics influencing judges' and attorneys' behaviors.
Thorley conducted a novel randomized field experiment conducted in Wisconsin and Texas trial courts, where judges were randomly assigned to receive letters highlighting potential conflicts of interest and requesting recusal. The results indicate that judges rarely recuse themselves or disclose conflicts, even when prompted by an external request. Furthermore, attorneys do not ask for recusals even when conflicts are disclosed.
Conclusions
The findings suggest that the current recusal regime is ineffective and that increased judicial disclosure alone will not solve the problem. Thorley proposes procedural and institutional reforms, including limited no-cause peremptory challenges paired with mandatory administrative disclosure of attorney donations, and considers anonymized donations as a potential solution. The study underscores the importance of empirical research in evaluating legal policies and the value of field experiments in legal studies.
In sum, while clear guidelines for judicial recusals exist, particularly in federal courts, the reality of recusal practices often falls short of expectations. The subjective nature of many recusal decisions, coupled with the reluctance of judges to step aside and attorneys to request recusals, creates a significant gap between the ideal and actual implementation of these rules.
And then it should come as no surprise that judges that have been called on to decline a case — such as the judge presiding over Trump's classified documents trial — have refused to recuse.
Related Resources:
- Indiana Judge Reprimanded for Good Deed, Bad Decision (FindLaw's Practice of Law)
- How Are Judges Selected? (FindLaw's Learn About the Law)
- How Much Experience Do You Need To Become a Judge? (FindLaw's Practice of Law)
