At “common law” the only thing that precluded a judge from sitting was pecuniary interest in the case. This disability was founded on the principle that no man can be a judge in his own cause, which was first enunciated in Anglo-American jurisprudence by Edward Coke in Dr. Bonham’s Case. The law of judicial disqualification has changed significantly since Coke’s time, but it is as true now as it was then that, once a person dons the judicial robe he should abstain from taking part in any judicial act in which his personal interests are involved. In fact, the principle that a man should refrain from being a judge in his own cause is “axiomatic.” It should be noted however, that not every interest a judge may be thought to possess in a party, or in the subject matter of the case, has been deemed to be sufficient to warrant disqualifying that judge. For example, where the interest possessed by the challenged judge is either “indirect” or “remote” it is generally not the kind of interest that would reasonably bring her impartiality into question; and, therefore, not the kind that would warrant recusal.
Just as a judge may be subject to disqualification in a situation where she has an interest in the subject matter of the case or in a party, she may be subject to disqualification if her spouse or other close relative has such an interest. However, just how close such a relationship must be before judicial impartiality concerns will be implicated is not entirely clear. Congress, state legislatures, and many courts have adopted provisions designed to proscribe judges from acting in matters in which their close family members are involved; but, to defeat the presumption of neutrality that is typically afforded a judge, the moving party must allege more than that a judge’s relative has “something to do with” a proceeding. Rather, it must be demonstrated that the judge’s relationship is sufficiently close to warrant an inference that her impartiality is likely to be compromised. Then it must be shown her relative’s interest is substantial enough to justify the belief that the judge would be likely to be tempted to depart from the expected judicial mien — either to advance her relative’s interest or make it appear that she has not.
Sometimes motions to disqualify are not based upon a judge’s family relationships, but on his social ones. In some other countries, judges are purposefully insulated from contact with lawyers and others, but individuals who become members of the American judiciary do not arrive there from a cloistered order. The fact is, moreover, that and an American judge is not, upon elevation to the bench, expected to withdraw from society and live an ascetic life. On the contrary, it is generally accepted that judges, like other American citizens, will be active participants in the society and community in which they sit. Consequently, it has generally been agreed that the mere fact that a judge maintains an ordinary social relationship – either with parties to the proceeding or with the attorneys who practice before her – does not provide a valid basis for disqualifying that judge from presiding over proceedings involving such persons.
1. For a 2012 Washington Post Opinion piece by former Pennsylvania Senator Arlen Spector discussing the many high-profile requests for recusal of United States Supreme Courts justices in recent years (“Judging the justices over conflicts of interest”) click here
2. Cynthia Gray is the director of the American Judicature Society’s Center for Judicial Ethics, a “clearinghouse for information on judicial ethics and discipline.” To see Ms. Gray’s recent (2013) article in the ABA Judge’s Journal on the subject of disqualification of judges based on a judge’s friendships with attorneys click here
3. For a recent (2014) Minnesota ethics opinion discussing when a judge should be disqualified by virtue of a financial relationship with a lawyer click here
4. For a comprehensive overview of the interest” and “relationship” grounds for disqualifying judges – including a detailed discussion of the subject of recusal on the basis of a judge’s receipt of gifts or campaign contributions – see chapters 6 through 9 of Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges (Second Edition 2007).. To locate libraries near you that have the most recent edition of Judicial Disqualification in their collection click here
5. For a 2007 article by judicial ethics expert Leslie Abramson , available online, which discusses the need for judge’s to disclose financial interests and disqualification of judges for interest see The Justice System Journal, VOL. 28, NUMBER 3 (2007)
6. For a recent (Jan. 2014) American Judicature Society piece on disqualification of judges for campaign contributions click here