Deciding Recusal Motions: Who Judges the Judges
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1085
DECIDING RECUSAL MOTIONS:
WHO JUDGES THE JUDGES?
LESLE W, ABRAMSON
I. I1TIRODUCTION
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, ajudge may be unable to maintain impartiality in a case and
thus should be disqualifie& 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.I The Code prescribes disqualification for judges who recognize2 the
existence of a conflict of interest, or who encounter allegations of a conflict of
intrest in a motion to disqualify.3
' Professor of Law, University of Louisville School of Law. The author gratefully
acknowledges the able assistance provided by Cheryl Gentry Cooper, t third-year law student, in
the preparation of this article.
1. MovIt. CoDE OF JUDICiAL CoNDucT Canon 3B (1990) hainftler COD8]. Although the
1990 version ofthe Code of Judicial Coaduct is the most recently approved version by the Amniom
Bar Association, moat mat still follow the original version, which was adopted in 1972. An of late
1993, judi ial codes or canons based in part on the 1990 ABA Model Code of Judicial Conduct have
been adopted In Arizona, Arkam. California, Colorado, Oeorgii, Hawali, Illinois, Indiana, Maine,
Maryland, Massachusets, Nebraska, Nevada, North Dakota, Rhode t ,lan, South Dakota, Texas,
West Virginia, Wyoming, ad the U.S. Judicial Conference.
2, The language of the Code leave. no doubt that, in the firs instance, the rensaal procea is
to be self-exteuting, without the need for a judge to wait for a recusl motion to be filed.
[I is intended to be used by a judge at the start of each caw as a checlist to asist in
deciding whether at that point he should disqualify himself from any participation in the
proceedings.... [E1ven 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.
LUSLa W. ABRAMSON, JUDICIAL DISQUALIFICATION UK : CANON 3 OF WiE CODE OF JUDICIAL
CONDUCT 10 (2d ed. 1992).
3. Canon 3 states in part:
C. Disqualification
(t) A judge should [shall] disqualify himself [or herself] in a proceeding in which his
[or her] inpartiality 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
persconalknowledgeof disputed evidentiary facts conaeruing the proceeding;
(b) he [or she) served as lawyer in the matter in contoversy, or lawyer with
whom he [or she] previously practiced law served during such associatiOa
as a lawyer concerning the matter, or the judge or such lawyer has been a
material witness concerning it;](ViewImageLocal?handle=hein.journals/valur53&div=54&collection=&method=preview&ext=.png&size=3)
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Deciding Recusal Motions: Who Judges the Judges
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