Introduction: Taking Disqualification Seriously

By Gray, Cynthia | Judicature, July/August 2008 | Go to article overview

Introduction: Taking Disqualification Seriously


Gray, Cynthia, Judicature


Numerous news stories in the last several years have brought the importance of an impartial judiciary to the public's attention in a very vivid way. Most recently, for example, in the case against the Jena Six, one state judge found that the statements of another disqualified him from presiding in a racially-charged case in Louisiana. Earlier this year, a justice of the West Virginia Supreme Court of Appeals was forced to disqualify himself from a case after pictures were published of him socializing on vacation in Europe with the chief executive officer of a corporation that was a party in the case. The issue may make news again in the next U.S. Supreme Court term if it grants two petitions for certiorari that argue the impartiality of state appellate judges was compromised by substantial contributions to their election campaigns, violating due process.

Most rules specifying when a judge is disqualified or should recuse are based on or similar to Canon 3E (now Rule 2.11) of the American Bar Association Model Code of Judicial Conduct, the 2007 version of which is reproduced on page 10. Based on the initial report of the ABA's disqualification project, from its Standing Committee on Judicial Independence, the article in this issue,"Taking disqualification seriously," notes the variations on the rules as adopted by the states and the wider variations in the procedural rules for implementing them. Co-authored by Charles Geyh, one of the reporters for the 2007 model code, the article describes the "inherent tension between traditional conceptions of the judicial role and disqualification for bias that has bothered judges and scholars for centuries."

Prompted by the current interest in disqualification issues, in 2007, the American Judicature Society devoted its annual meeting program to "Ensuring an impartial judge: Current disqualification issues." An edited version of the transcript of the meeting appears in this symposium issue. Judge Julie Conger (now retired from the Alameda County Superior Court) shares the perspective of a California state judge on the issue and describes how the state's peremptory challenge rule operates. Sherri Carter, the clerk of the largest federal district court, explains the recent innovations in the federal courts to ensure that judges do not sit in cases involving parties in which they have a financial interest or individuals with whom they have a disqualifying relationship.

The third article in this symposium, "Invigorating judicial disqualification: Ten potential reforms" is based on the premise that the time has come for the judiciary to adopt reforms that will protect judicial independence by increasing judicial accountability in the procedural sense. …

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