Invigorating Judicial Disqualification Ten Potential Reforms

By Sample, James; Young, Michael | Judicature, July/August 2008 | Go to article overview

Invigorating Judicial Disqualification Ten Potential Reforms


Sample, James, Young, Michael, Judicature


The time has come for all courts-and particularly lected courts-to take active measures to estore public trust. Without a meaningful response to legitimate concerns induced by their own campaign-related behavior, judges cannot expect the public to rise to their defense when their authority is questioned on illegitimate grounds. To protect judicial independence, courts must embrace the public demand for accountability-in its procedural sense. Courts must demonstrate their accountability for the decisions they make by more aggressively distancing themselves from situations in which their fairness and impartiality might reasonably be questioned.

With the canons of judicial conduct looking increasingly precarious in the wake of Republican Party of Minnesota v. White, courts and litigants are left with precious few reliable mechanisms to safeguard the constitutional right to due process. Recusal is one such remaining safeguard, and, because it is tailored to the specific factual circumstances of the case at issue, it does not trigger the same First Amendment scrutiny as canons limiting political speech.1 To combat the growing threats to judicial independence and impartiality-and the inadequacy of judicial disqualification, as currently utilized -we propose here some possible solutions.

Specifically, we offer 10 proposals with the potential to invigorate dramatically the protections offered by disqualification. We first suggest nine possible reforms to systems of disqualification that courts could implement unilaterally-what we will call internal solutions. Some of these reforms could also be implemented by state legislatures. We then suggest an additional reform that citizens might undertake even without the imprimatur of the courts-what we will call an external solution. We make no claim to the originality of our list, but it offers an array of recusal reform options for courts interested in preserving their independence and impartiality.

We recognize that all of these proposals require tradeoffs among the benefits and risks they present. On the one hand, strengthening disqualification rules may be a means to safeguard due process and public trust in the judiciary.2 On the other hand, strengthening these rules may increase administrative burdens and litigation delays, open new avenues for strategic behavior (such as judge shopping), and undermine a judge's duty to hear all cases. These tradeoffs demand that any solution be carefully designed and implemented, and we do not mean to minimize that task by providing only a cursory sketch of each reform option.

Nine internal solutions

Invigorating recusal standards in any particular jurisdiction is unlikely to require acceptance of all of the proposals we describe. Indeed, some of the procedures we recommend are already in place in some states.3 Implementing certain suggestions would obviate the need for others. The value of each reform will depend upon the context into which it is introduced.

1. Peremptory disqualification

Just as the parties on both sides of criminal trials are permitted to strike a certain number of people from their jury pool without showing cause, so might litigants be allowed peremptory challenges of judges. About a third of the states already permit counsel to strike one judge per proceeding.

One example is Montana, where each party in a criminal or civil matter is allowed one "substitution" of a judge.4 The only requirements placed on the party moving for substitution are that the motion be filed in a timely manner (within 30 days after service of summons) and, in civil cases, that it be accompanied by a $100 fee. Peremptory disqualification has the potential to substantially increase the frequency of disqualification, and it denies judges the opportunity to defend themselves against charges of partiality. Its great advantage, though, lies in its simplicity: by granting litigants one "free pass," peremptory disqualification allows most of them to secure an unbiased judge without the expense, unseemliness, and retribution risk of a disqualification challenge. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Invigorating Judicial Disqualification Ten Potential Reforms
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.