Judicial Disqualification Resource Center

Judicial Rulings, Comments or Conduct

The rulings a judge makes can arouse strong feelings, and there are occasions when a judge’s rulings might lead a reasonable person to question whether that judge would be able to be impartial in handling any subsequent proceedings involving the same parties. However, in a 1994 case, Liteky v. United States , the United States Supreme Court held that because a judge’s rulings cannot normally be shown to have be attributable to an “extrajudicial source,” and can only in the rarest circumstances evidence the requisite degree of favoritism or antagonism when no extrajudicial source is involved, such rulings alone almost never constitute a valid basis for a disqualification motion. Liteky does not constitute binding authority on state courts; but, since Liteky was handed down, the nation’s courts have generally agreed that the rulings a judge renders in the same or a related case will almost never support a presumption of judicial bias – much less establish the bias required to warrant disqualifying the judge who issued those rulings.

The same is true of a judge’s comments. The Code of Judicial Conduct admonishes judges to be courteous to litigants, observe proper decorum, and to be cautious and circumspect in their choice of language. Nevertheless, judicial bias will not ordinarily be presumed on the basis of a judge’s random remarks — particularly when they were made inside the courtroom. Further, while appellate courts certainly do not encourage lower court judges to make inappropriate comments, especially in the presence of a jury, the remarks a judge makes inside a courtroom are usually considered to be insufficient to mandate disqualification, as long as they do not demonstrate that the judge has formed a fixed opinion with regard to the ultimate merits of the matter pending before him.

As for judicial conduct, a judge is expected to maintain a calm and impartial demeanor; and, generally, to avoid any action that might suggest bias or favoritism toward any of the parties. However, the fact that a judge has been appointed to the bench does not obligate him to abdicate human emotion; nor is he compelled to behave as if he were an umpire or referee who must remain mute until a party calls upon him for a ruling. A judge generally has the power to direct a trial along recognized lines of procedure, in any manner reasonably calculated to bring about a just result; and he may take all steps reasonably necessary to ensure the orderly progress of the trial, and the orderly administration of justice – including participating in the conduct of the trial itself. Thus, the discretionary actions a judge takes to control a proceeding pending before him do not ordinarily provide any evidence of judicial bias, or a basis for judicial disqualification.

References:

1. To review Berger v. United States, 255 U.S. 22 (1921) a classic United States Supreme Court case in which the question presented was whether a judge who told German-American parties to a case he was presiding over, among other things, that their hearts were “reeking with disloyalty” was subject to disqualification when those parties filed an affidavit of prejudice click here

2. For a 1995 Northwestern University Law Review Article discussing the then-recent Liteky v. United States decision – and, in particular, the “extrajudicial source” doctrine discussed in that case – click here

3. For a comprehensive review of the case law discussing motions to disqualify judges based on their rulings, comments or conduct – including a detailed discussion of the subject of disqualification for “ex parte” communications — see chapters 14-16 of Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges (Second Edition 2007 and updated annually). To locate libraries near you which have the most recent edition of Judicial Disqualification in their collection click here