In 1972, the American Bar Association adopted a Code of Judicial Conduct that it hoped would help restore public confidence in the judiciary. As part of its trust-building effort, the Code sought to instill uniformity and predictability in judicial recusal decisions. Every jurisdiction adopted the new Code’s disqualification provision, which barred a judge from presiding in any matter in which the judge’s “impartiality might reasonably be questioned.” Unfortunately, this appearance-based disqualification test has been a documented failure. It has not decreased the arbitrariness, or increased the predictability, of recusal decisions. In fact, misuse of the standard to attack the impartiality of judges on the basis of a judge’s religion, race, ethnicity, sex, or sexual orientation has actually reduced society’s faith in the judiciary. It is time to end the 40-year experiment with the unworkable, counterproductive ABA disqualification standard.
This Article proposes a new disqualification regime for trial court judges. The proposal suggests replacing the “might reasonably be questioned” test with a procedure providing for the peremptory removal of a trial judge upon the timely and perfunctory request of a party. Eighteen states currently guarantee each party the right to remove one trial-level judge without cause. After exercising the right to an automatic change of judge, a litigant could challenge the successor judge if the judge is disqualified under a statute or court rule. All jurisdictions currently identify specific situations requiring recusal. Finally, the successor judge could be challenged under the Due Process Clause when the circumstances create a serious risk of partiality on the part of the judge. A peremptory challenge system, coupled with a list of disqualifying factors, and the right to challenge a judge’s impartiality on due process grounds, will provide a superior disqualification process.