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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. 

Judge 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.

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 judges financial holdings. The Code and the recusal statute require a judge to be informed about the judges and the judges 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 judges 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.

Our 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.