ABA Report: Recommendations for Improving Judicial Disqualification Practices and Procedures Among the States

ABA Standing Committee on Judicial Independence (SCJI)

In an October 20, 2010 e-mail discussing the Report, William K Weisenberg, Chair, ABA Standing Committee on Judicial Independence writes:

“On behalf of the Standing Committee on Judicial Independence (SCJI), I am pleased to present for your consideration recommendations and a report that address one of the most significant issues impacting the public’s trust and confidence in a fair, impartial and independent judiciary – the disqualification of a judge when the impartiality of the judge might reasonably be questioned either through specific conduct or the appearance of impropriety. In July, 2010, an updated draft of the recommendations and report was distributed widely for review by ABA entities and outside groups. The Committee held a public forum at the 2010 ABA Annual Meeting on Saturday, August 7, 2010, in order to encourage audience comments and suggestions on the revised proposal. Based upon the comments and suggestions received both at the forum and thereafter, SCJI revised the recommendations and report. They will be submitted to the House of Delegates for consideration at the 2011 Midyear Meeting. SCJI feels strongly that it has met its objective of helping states improve their judicial disqualification practices and procedures by providing to state supreme courts a menu of options to be considered as states move forward with adoption of standards and rules, while promoting public confidence in the state courts….”


In recent years, judicial disqualification has emerged as an important policy issue in several states and an important focus of discussion and debate on ways to improve both the reality – and the public perception – of the fairness and impartiality of our court system. That focus has been sharpened because of intense public scrutiny and criticism in several highly publicized cases of refusals by judges to recuse themselves in circumstances where, as the default standard articulated in the Model Code of Judicial Conduct puts it, “the judge‟s impartiality might reasonably be questioned”‘

.The ABA has traditionally taken the leading role in providing guidance to the States on matters of judicial ethics and judicial conduct.4 Since 2007, the ABA Standing Committee on Judicial Independence (‘SCJI’ or the “Committee”) has been working on a project to survey disqualification rules and practices in state courts around the country, to identify problems and uncertainties that arise under existing regimes, and, if and as appropriate, to propose reforms. The Judicial Disqualification Project (‘JDP’) has conducted research, solicited comments on particular ideas and proposals (primarily within the ABA but also from certain outside entities with a strong interest in the area, such as the Conference of Chief Justices), and gradually refined the thinking of the Committee’s membership on these issues.

It bears mention here that the focus of the JDP has been on the State judiciaries and not the federal. Notwithstanding that focus, this Report benefits from the guidance provided by federal case law, some of which is cited herein. Indeed, much of the law on judicial disqualification as it has developed in this country, and the concomitant guidance to the judiciary as a whole and the practicing bar, has been the product of federal decisions. Nevertheless, it should be emphasized that the transformation of the landscape described below has been occasioned by dramatic changes in judicial elections and judicial campaign finance, neither of which has any relevance whatever to the federal judiciary….”


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