Deciding Recusal Motions: Who Judges the Judges
![handle is hein.journals/valur28 and id is 563 raw text is: DECIDING RECUSAL MOTIONS:
WHO JUDGES THE JUDGES?
LESLIE W. ABRAMSON*
I. INTRODUCTION
Judicial impartiality is a significant element of justice. Judges should
decide legal disputes free of any personal bias or prejudice. As a result of a
conflict of interest, a judge may be unable to maintain impartiality in a case and
thus should be disqualified. Even where a judge is impartial, but appears not
to be, recusal is necessary. To promote the goal of judicial impartiality, most
states have adopted the American Bar Association's Model Code of Judicial
Conduct.' The Code prescribes disqualification for judges who recognize2 the
existence of a conflict of interest, or who encounter allegations of a conflict of
interest in a motion to disqualify.'
' Professor of Law, University of Louisville School of Law. The author gratefully
acknowledges the able assistance provided by Cheryl Gentry Cooper, a third-year law student, in
the preparation of this article.
1. MODEL CODE OF JUDICIAL CONDUCT Canon 3E (1990) [hereinafter CODE]. Although the
1990 version of the Code of Judicial Conduct is the most recently approved version by the American
Bar Association, most states still follow the original version, which was adopted in 1972. As of late
1993, judicial codes or canons based in part on the 1990 ABA Model Code of Judicial Conduct have
been adopted in Arizona, Arkansas, California, Colorado, Georgia, Hawaii, Illinois, Indiana, Maine,
Maryland, Massachusetts, Nebraska, Nevada, North Dakota, Rhode Island, South Dakota, Texas,
West Virginia, Wyoming, and the U.S. Judicial Conference.
2. The language of the Code leaves no doubt that, in the first instance, the recusal process is
to be self-executing, without the need for a judge to wait for a recusal motion to be filed.
[It] is intended to be used by a judge at the start of each case as a checklist to assist in
deciding whether at that point he should disqualify himself from any participation in the
proceedings.. .. [E]ven before appraising participation in the case under the [Code],
the judge should first consult his own emotions and conscience, and pass an internal
test of freedom from disabling conflicts.
LESLIE W. ABRAMSON, JUDICIAL DISQUALIFICATION UNDER CANON 3 OF THE CODE OF JUDICIAL
CONDUCT 10 (2d ed. 1992).
3. Canon 3 states in part:
C. Disqualification
(1) A judge should [shall] disqualify himself [or herselt] in a proceeding in which his
[or her] impartiality might reasonably be questioned, including but not limited to
instances where:
(a) he [or she] has a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) he [or she] served as lawyer in the matter in controversy, or lawyer with
whom he [or she] previously practiced law served during such association
as a lawyer concerning the matter, or the judge or such lawyer has been a
material witness concerning it;
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Deciding Recusal Motions: Who Judges the Judges
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