Judicial Disqualification Resource Center

Federal Law

Federal LawThe first federal disqualification statute was passed in 1792.  See Act of May 8, 1792, ch. 36, §11, 1 Stat. 278. That statute called for disqualification only when a judge had a pecuniary interest in a proceeding over which he was to preside, had “acted in” it, or had been “of counsel for” a party.  See, e.g., Liteky v. United States, 114 S. Ct. 1147, 1151 (1994).  

 

The federal disqualification statute was subsequently amended by Congress on many occasions, to the point that by 1911 there were two different federal disqualification statutes, §§ 20 and 21 of the Judicial Code.  See Act of Mar. 3, 1911, ch. 23, § 20, 36 Stat. 1090 (codified as amended at 28 U.S.C. § 20) and Act of Mar. 3, 1911, ch. 231, § 21, 36 Stat. 1090 (codified as amended at 28 U.S.C. § 21).

 

These two federal disqualification statutes still exist, but have been significantly altered and renumbered.  In 1948 § 21 was recodified as 28 U.S.C. § 144. In the same year § 20 was recodified as 28 U.S.C. § 455. Section 144 has stayed largely in tact since then; but, in 1974, Congress enacted amendments to § 455 which altered that statute to the point of virtual repeal.  See Act of Dec. 5, 1974, Pub. L. No. 93-512, 88 Stat. 1609 (codified as amended at 28 U.S.C. § 455).

 

For information about recusal and disqualification of judges in the District of Columbia, as well as in Guam, Puerto Rico, the Virgin Islands, or other U.S. Territories please click on the State Law bar at the top of this page and then click on the name of the jurisdiction you are interested in at the right of the State Law page.

 

 

References

 

1. For a  May 2010 article discussing federal judicial disqualification statutory law see Richard E. Flamm, “History of and Problems with Federal Judicial Disqualification Framework,” 58 DRAKE L. REV . 751, 763 (2010)

 

2. For a more recent article discussing the history of American recusal jurisprudence generally see R. Flamm, “The History of Judicial Disqualification in America,” ABA Judge’s Journal, Vol. 52 No. 3 (July 2013)

 

3. For a comprehensive overview of recusal and disqualification law in the federal courts which is updated annually see Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges (Second Edition, 2007) (chapters 23 through 25). To locate libraries near you that have this book in their collection click here