What is recusal? What does it mean for a judge to “recuse” herself?

Recusal is when a judge voluntarily chooses not to hear a case.  Judges may recuse themselves in both criminal cases and civil cases like personal injury claims.

There are several reasons a judge may recuse herself, or why a plaintiff, defendant or attorney might ask a judge to consider recusing herself.  For instance, the judge may have a conflict of interest: a party in the case might be a company in whom the judge has invested heavily, or may be a friend or family member.  An attorney or witness whom the judge knows personally may be involved in the case.  Or the judge may feel that, for personal reasons, she will not be able to act impartially in the case.  For instance, a judge who lost a child in a drunk driving accident may choose to recuse herself from a drunk-driving case in which a child was killed, even if the case she has to hear is not related to the situation that killed her child, because she believes her loss will prevent her from treating the defendant fairly.

In some cases, a judge may recuse herself if she is scheduled to hear a case that she worked on while she was a prosecutor or attorney.  For instance, when Supreme Court justice Elena Kagan was appointed in 2010, she had to recuse herself from several cases because she had worked on them in her position as Solicitor General of the United States, which she held immediately before being nominated to the Supreme Court.   This situation is more common in courts of appeals, but it also occurs at the trial court level when a local attorney is elected or appointed to serve as a judge.  Justice Stephen Breyer occasionally recuses himself in insurance cases, because he is financially involved in an insurance syndicate.

Judges may recuse themselves for more personal reasons as well.  For instance, former Supreme Court Justice William H. Rehnquist used to recuse himself whenever a case was argued by Arizona attorney James Brosnahan, because Brosnahan was among those who testified against Justice Rehnquist during Rehnquist’s Senate confirmation hearings.

The federal Judicial Code states that a judge must recuse himself “in any proceeding in which his impartiality might reasonably be questioned.”   These include proceedings in which the judge has a personal bias or prejudice against a party, when the judge has served as an attorney or witness in the case or any stage of it, and when the judge or a member of the judge’s immediate family has a financial interest in the case.  Many states have similar requirements.

The issue of recusal may come up in one of two ways.  The first occurs when one of the parties to the case either makes a formal motion or suggests informally that the judge recuse herself.  Often, the party will list the reasons he thinks the judge should not be involved in the case.  The second way is for a judge to recuse herself sua sponte, or without a motion.  These cases are most likely to happen when the reasons for a judge to recuse herself are very clear; however, even if a judge does not recuse herself sua sponte, a situation in which the reasons for recusal are clear almost always results in a motion or request for the judge to recuse herself.

A judge who knows she should recuse herself but does not may face sanctions, which vary depending on the state in which the judge is licensed.  If a judge does not recuse herself, one or both parties in the case may file a motion for substitution, which asks for a new judge.  Also, if a judge does not recuse herself when she knows she should, the losing party at trial may be able to win a new trial on appeal by arguing that the judge acted improperly by not recusing herself.

A judge who has a personal conflict of interest in the case may nonetheless stay on the case instead of recusing herself if all the parties and the judge understand the conflict, but agree the judge should stay on anyway.  In these cases, which are not common, the parties and the judge usually put their decision on the record in case one of the parties tries to appeal later on the grounds that the judge should have recused herself.

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