Judicial Recusal and Disqualification: The Need for a Per Se Rule on Friendship (Not Acquaintance)

Abstract:     
Legal Ethics rules have become both more objective and more specific. There are already enemy rules for recusal. The recent debacle of the Antonin Scalia/Dick Cheney hunting trip when VP Cheney was a named defendant, and Scalia's refusal to disqualify himself shows there is a problem. But Scalia was correct, friendship does not mandate recusal. However, friendship, properly defined, as herein, must be added to the recusal factors. Former Chief Justice Rehnquist refusing to disqualify himself when he was involved in a lower court case as prosecutor caused an analogous change in the judicial conduct rules. This paper traces case law, defines friendship, and gives examples of the effect of a clearly drafted friendship recusal rule.

Accepted Paper Series