The (Usually) Not-So-Difficult Question: Should a Policyholder Ask To Recuse a Federal Judge?

To avoid the appearance of impropriety, the federal judiciary ensures that every case is assigned to impartial judicial officers. Absent a unique circumstance,¹ all cases are assigned to a judge based on a random-draw system. Thus, there is usually no way for litigants to know which judge will preside over the action. Most districts also require the parties to file corporate disclosure forms and certify that the parties are aware of no judicial conflicts. Judges often proactively screen themselves from certain cases where parties are represented by former colleagues or law clerks.

Despite these steps, recusal issues regularly arise. Rather than serving as point of contention, federal judges want litigants to inform them of any potential conflict that they may have over presiding over the case—especially early in the litigation. Like their state counterparts, federal judges jealously guard their institution’s reputation and screen themselves from cases when their integrity might be reasonably questioned.

Indeed, there are five circumstances that statute requires a federal judge to recuse automatically:²

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.

Indeed, for these circumstances, the parties cannot waive their right for the judge’s recusal. The judge and parties have no choice: the presiding judge must recuse.

When a federal judge issues a tough ruling, it is important for policyholders to recognize that the ruling itself is not a basis to seek a new judge to preside over the case. Instead, absent a circumstance requiring mandatory recusal, seeking recusal is only appropriate in cases in which the judge’s “impartiality might reasonably be questioned.”³ The test is whether an “objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality.”⁴ A judge has a duty to preside over the assigned case, and should not recuse based on “unsupported, irrational, or tenuous allegations.”⁵ Quite simply, a difficult or even unfair ruling is not enough to ask a judge to recuse. Only when the public might reasonably question the judge’s ability to proceed impartially can a policyholder even consider the option to seek recusal.

Last year, Chief Justice John Roberts wrote that our nation had “an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” How true. Policyholders—and their attorneys— are extremely fortunate to have a dedicated, fair, and impartial judiciary presiding over their complex cases.
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¹ For instance, (1) the division’s administrative judge or the district’s chief judge might order the clerk to transfer several factually similar cases to one judge for judicial efficiency interests; and, (2) the multidistrict litigation panel might order consolidation of certain cases for a single judge to enter all pretrial orders before sending the cases to the original judge for trial.
² 28 U.S.C. § 455.
³ 28 U.S.C. § 455(a).
⁴ Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988).
⁵ Giles v. Garwood, 853 F.2d 876, 878 (11th Cir. 1988) (per curiam).