Disqualifying Judges When Their Impartiality Might Reasonably Be Questioned: Moving Beyond a Failed Standard

68 Pages Posted: 30 May 2014

See all articles by Ray McKoski

Ray McKoski

UIC John Marshall Law School

Date Written: May 28, 2014

Abstract

All state and federal courts require the disqualification of a judge when the judge’s “impartiality might reasonably be questioned.” Created by the ABA in 1972, this disqualification standard was intended to help restore public confidence in the judiciary by instilling uniformity and predictability in the recusal process. Unfortunately, the “might reasonably be questioned” test has been an utter failure. It has not decreased the arbitrariness or increased the predictability of recusal decisions. On the contrary, the vague and unworkable standard (1) prevents a disqualification jurisprudence from developing, (2) renders it impossible for ethics advisory committees to provide meaningful advice to judges on recusal issues, and (3) provides a vehicle upon which litigants and non-litigants can shamelessly attack a judge’s impartiality on the basis of the judge’s religion, race, ethnicity, sex, or sexual orientation.

This Article proposes a new disqualification regime for trial court judges. The proposal suggests replacing the “might reasonably be questioned” test with the peremptory removal of a trial judge upon the perfunctory request of a party. After exercising the right to an automatic change of judge, a litigant could challenge the successor judge if the judge is disqualified under a statute or court rule. Finally, the successor judge could be challenged under the Due Process Clause when the circumstances create a serious risk of partiality on the part of the judge. A peremptory challenge system, coupled with a list of disqualifying factors, and the right to challenge a judge’s impartiality on due process grounds, will provide a superior disqualification process.

Keywords: judicial disqualification, recusal, judicial ethics, judicial impartiality, due process, appearance of impropriety

JEL Classification: K19, K41

Suggested Citation

McKoski, Ray, Disqualifying Judges When Their Impartiality Might Reasonably Be Questioned: Moving Beyond a Failed Standard (May 28, 2014). Arizona Law Review, Vol. 56, No. 411, 2014, Available at SSRN: https://ssrn.com/abstract=2442942

Ray McKoski (Contact Author)

UIC John Marshall Law School ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

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