Litigation

Federal Recusal Rules Get New Attention

By Peter Hardin

An important protection for ensuring fair and impartial courts continues to draw increasing public attention. It is called recusal, and it refers to a judge stepping aside from a case when he may have a bias or ethics conflict.

The Supreme Court’s landmark Caperton v. Massey decision last year focused on recusal and centered on protecting due process rights when a West Virginia judge had benefited from more than $3 million in political spending by a party to a case. This week, the Associated Press gave recusal further attention when it published a nationally distributed article headlined, “States, Congress wrestle with judicial bias rules.”

While Caperton did not directly impact federal judges, and they do not face campaign cash controversies because they are appointed for life, the AP writes the case “has stirred new debate about the federal recusal rules, which now revolve around this standard: people are entitled to a judge who is impartial and who appears to a ‘reasonable’ observer as impartial.”

Currently, federal judges themselves make the call on whether  a possible bias or ethics issue might force his or her recusal. But a leading proposal in Congress would change that, requiring that  a request for recusal be heard by a second judge.

“Judges might not be the best people to determine whether they should recuse themselves from cases,” said U.S. Rep. Hank Johnson, D-Ga. “The failure of a judge to recuse himself or herself where the outcome is a miscarriage of justice should be taken very seriously.”

In addition, the American Bar Association plans to announce a draft proposal to change disqualification rules as early as next month.

In states, the AP reported that “a key concern is the influence of campaign cash received by elected judges.” This is a concern Justice at Stake has raised repeatedly, including in an amicus brief in the Caperton case. Regular readers have seen Gavel Grab’s many posts –as recently as a day ag0–about states weighing new recusal rules.

Among states thinking about new recusal rules involving campaign donations, according to AP, are California, Florida and Washington. You can learn more about Caperton from Gavel Grab. Or you can visit Justice at Stake’s page on recusal reform.

Full post as published by The Gavel on February 19, 2010 (boomark / email).