An Invaluable Tool
Gray, Cynthia, Judicature
An invaluable tool Judicial Disqualification: Recusal and Disqualification of Judges, Second Edition, Richard E. Flamm. Banks and Jordan. 2007. 1,208 pages. $220.
by Cynthia Gray
In every case, a judge has to determine not only if she is disqualified on any of the specific grounds listed in the code of judicial conduct, court rules, and statutes but also whether she subjectively feels she can be impartial and whether others might reasonably question her impartiality. This determination is complicated because judges lead complicated lives.
They have a pre-bench past. Cases may involve attorneys they practiced law with, former clients, people they went to law school with, and people they prosecuted when they were district attorneys. How they got on the bench may be relevant, particularly in states in which judges have to be politicians too, running for office, raising money, and making statements during their campaign.
And, of course, judges have families. They have parents. They have brothers and sisters. They are allowed to marry. They are allowed to have children, and these people are also allowed their personal lives.
Judges have financial interests. They are allowed to own stock and real estate. They have hobbies and extra-judicial activities. They can bowl or run marathons or take part in book groups. They have worship communities. They belong to and volunteer for charitable organizations.
It would be impractical for a code of judicial conduct to anticipate all of the potential disqualification scenarios and adopt an express rule for each. The ABA added several more specific rules when it revised the Model Code of Judicial Conduct in 2007, but there were several other common situations that could have been expressly addressed and an infinite number of possible fact situations that could not be encompassed in one code.
Not surprisingly, therefore, the issue of a judge's disqualification is frequently raised in litigation, and there are numerous cases every month deciding disqualification questions. Fortunately for a judge looking for guidance, in 1996, Richard Flamm wrote a comprehensive treatise simply called Judicial Disqualification: Recusal and Disqualification of Judges and, very helpfully, a second edition was published in 2007, noting "in the eleven years since Judicial Disqualification was first published there have been thousands of reported decisions on judicial disqualification."
One of the daunting aspects of studying disqualification is that, while the rules may be similar, their application varies from jurisdiction to jurisdiction. Judicial Disqualification acknowledges that problem and succeeds in the author's attempt "to write a treatise that not only elucidates the commonly accepted principles of disqualification jurisprudence, but . . . affords comprehensive treatment to the substantial differences between the various existing judicial disqualification provisions."
Although the quality of a book cannot usually be measured by its length, Flamm's thorough analysis delivers on the promise of the 1100 pages of text (not including appendices and indices). The book is an invaluable research tool because the huge amounts of information are organized into relatively brief sections in numerous chapters outlined in the extensive table of contents and with an extensive subject index.
After several introductory chapters, Judicial Disqualification has sections on specific bases for disqualification, such as interest and relationships, background, and judicial conduct. The section on background, experience, and knowledge, for example, has chapters on prior activity as an attorney, judicial knowledge, and knowledge obtained in criminal proceedings. The chapter on background and experience has sections on life experiences; race, gender, disability, and sexual orientation; religious, political, or other affiliations; the dual role of adjudicator and administrator; disqualification for views about the law, policy, or crime; expressions of a legal opinion; and prejudgment as to a defendant's guilt. …