Reversal by Recusal?: Comer v. Murphy Oil USA, Inc. and the Need for Mandatory Judicial Recusal Statements
University of New Hampshire Law Review, 2015
37 Pages Posted: 29 Jun 2014 Last revised: 28 May 2015
Date Written: May 23, 2015
In many cases, if not most, voluntary judicial recusal is both an efficient use of judicial resources and an exceptional safeguard to the legitimacy of the federal judiciary. However, voluntary judicial recusal poses its own unique problems when the withdrawing judge declines to issue a statement explaining the statutory grounds for his or her recusal. Unlike when a party seeks to disqualify a judge by motion — where the reasons for recusal will, at a minimum, be set out in the motion papers — when a judge voluntarily recuses, there is not necessarily any record created as to the reasons for the recusal. Such recusals leave litigants in the dark, creating numerous practical problems where the recusal itself has collateral consequences. These problems are compounded when, prior to recusal, the judge has already taken meaningful action in the case.
This article will analyze the recent case of Comer v. Murphy Oil USA Inc. in an effort to illustrate several of the many reasons why federal judges, upon voluntary recusal, should be required to issue a statement identifying the statutory provision requiring their disqualification. The article will also argue that where a judge is recusing him or herself from a case where the basis of the recusal may be waived, the parties should be permitted to demand, and receive, a statement sufficiently detailed so as to permit them to waive the conflict if they so choose.
To put the arguments in context, this article will first lay out the highly unusual procedural history of Comer v. Murphy Oil USA, Inc. Next, the article will use the facts of Comer to illustrate several problems created, exacerbated, or made insoluble by voluntary recusal without the issuance of a recusal statement. Finally, the article will propose two statutory provisions for suggested inclusion in the federal judicial recusal statutes. Those provisions would require judges to issue basic recusal statements whenever they become disqualified and more detailed statements in appropriate circumstances without requiring a level of detail that would over burden the judiciary or impinge too far upon the privacy interests of individual federal judges.
Keywords: Judicial Ethics; Judicial Disqualifiation; Federal Civil Procedure
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