Broad Array of Tools Ensures Fair and Impartial Adjudication
December 10, 2009
Contact: Karen Redmond, 202-502-2600
Responding to Congressional queries on the state of federal judicial
recusal, a representative of the Judicial Conference of the United
States today told a congressional subcommittee that both judges and the
public have a broad array of tools and a transparent environment to
ensure the fair and impartial adjudication of cases.
Judge M. Margaret McKeown, chair of the Judicial Conference Committee
on Codes of Conduct, testified before the House Judiciary Subcommittee
on Courts and Competition Policy. In addition to discussing the strong
framework established by the federal Judiciary, Judge McKeown provided
an overview of the recusal standards applying to federal judges and
explained the role that the Codes of Conduct Committee, which is the
federal judicial ethics committee, plays in advising judges in ethics
issues, including recusal.
McKeown noted that judges must abide by not only the ethics statutes
that apply to all public servants, but additional ethics and recusal
statutes that apply only to judges. Additionally, the Judicial
Conference imposes ethical constraints through its Code of Conduct for
United States Judges—a Code that both parallels and expands upon the
recusal statutes and the Code lie at the heart of a much broader
framework that the Judiciary has developed so that the recusal process
can help provide a fair and impartial forum for each case,” Judge McKeown testified. “The
Judiciary has implemented efforts to promote transparency and provide
multiple checkpoints in the recusal process itself, and has adopted a
number of mechanisms that supplement the recusal requirements of the
Code and the statute.”
The Code of Conduct provides specific situations in which recusal is
mandatory. Also, in the federal system—unlike some state judicial
codes—there is no “de minimus” exception for recusal based on a financial interest.
“Even owning a single share of stock in a party requires recusal,” Judge McKeown said. “This bright line rule avoids any ambiguity about recusal as a result of equity holdings.”
Federal judges cannot avoid recusal by placing assets in a blind trust or by avoiding knowledge of the judge’s financial holdings. The Code and the recusal statute require a judge to be informed about the judge’s and the judge’s family members’
financial interest. Even divestiture of a financial interest to avoid
recusal is not permitted if the judge has an interest that could be
substantially affected by the outcome of the proceeding.
Institutional safeguards also exist to ensure judges have the tools
they need to follow the recusal statutes and the Code of Conduct and to
minimize conflicts before the possible need for a recusal motion
arises. These include systems that randomly assign cases to judges
within a particular court, and the mandatory use of an electronic
conflicts screening system to ensure judges do not inadvertently fail
to recuse based on financial interests in a party.
“Under this mandatory policy, each judge must develop a list of financial interests that would trigger recusal,” Judge McKeown said. “The
system flags potential conflicts, which enables the judge to decline an
assignment or, if the case has been assigned, to recuse if necessary.
Once a case is assigned, a judge has a further continuing obligation to
evaluate and monitor the case for potential recusal triggers.”
All judges must file detailed annual financial disclosure reports under
the Ethics in Government Act, and disclose their attendance at
privately-funded educational seminars—and seminar providers must
disclose their sources of funding. The litigation process provides
opportunity for any party to challenge a judge’s
qualification to hear the case, and appellate review provides a further
avenue of recourse. Finally, the statutory process under the Judicial
Conduct and Disability Act may be available to address litigants’ complaints based on conflict of interest violations by a judge.
The Codes of Conduct Committee helps judges comply with the wide array
of recusal standards and safeguards. Among other duties, the Committee
oversees the mandatory conflicts screening system and serves as an
advisory body on ethics issues, including recusal.
goal is to make sure that the ethics guidelines for judges effectively
protect the fairness and impartiality of the judiciary,” said Judge McKeown, “while striking the right balance with judicial independence.”