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. …