Judicial Impartiality & Recusal: Reflections on the Vexing Issue of Racial Bias

28 Pages Posted: 11 Jun 2011  

Frank McClellan

Temple University - James E. Beasley School of Law

Date Written: June 9, 2011

Abstract

This article examines whether judges can realistically or effectively determine whether their racial biases preclude them from fairly presiding over a particular case and argues a motion for recusal is too straightforward of a mechanism to effectively address the complicated, elusive and often unrecognized issue of racial bias on the part of a judge. This article maintains a motion for recusal based on racial bias should almost never be raised except for the most extreme cases where the conduct and words of the offending judge is unmistakably and explicitly biased. Bearing in mind Chief Justice Nix’s opinions on judicial integrity and judicial disqualification, first, the article explores the issue of recusal from the perspective of the litigant and his or her attorney, then moves to discuss the complex issue of recusal motions based on racial bias on the part of the judges and attorneys, and lastly the article argues that lawyers who make baseless charges of racial bias should be subject to sanctions for unethical practices.

Keywords: recusal motion, judicial impartiality, Chief Justice Nix, racial bias

JEL Classification: K40, K41, K49

Suggested Citation

McClellan, Frank, Judicial Impartiality & Recusal: Reflections on the Vexing Issue of Racial Bias (June 9, 2011). Temple Law Review, Vol. 78, p. 351-378, 2005. Available at SSRN: https://ssrn.com/abstract=1861328

Frank McClellan (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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