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Judicial recusal is the removal of a judge from a case due to potential bias or conflict of interest. Judges can recuse themselves or be ordered to do so. Litigants can file a motion to recuse if they have concerns about a judge’s impartiality. A new judge may be assigned or the case may proceed with fewer judges. Reassignment to another court may occur to eliminate conflicts of interest.
Recusal is the dismissal of a judge, attorney, or juror in a case when it is feared that this person would be unable to participate fairly. This article focuses on judicial recusal, where a judge resigns a case or is ordered to do so, depending on the circumstances. This is a safeguard within the legal system to prevent people with biases or interests in a case from playing any part in its outcome; a judge could not, for example, preside over a drink-driving case involving his or her child.
There are two methods for judicial recusal. In some cases, a judge may recuse himself. Judges cannot arbitrarily decide not to serve in certain cases and must provide a reason for requesting not to serve. For example, judges with a financial or personal interest in a case might argue that they have a conflict of interest. Judges of higher courts such as the Supreme Court may have participated in lower cases and therefore would not be just parties in a higher case. Notably, several Supreme Court justices have recused themselves from cases in which their children take the case to court, an example of legal dynasties in action.
If a judge does not resign voluntarily, it may be possible to file a motion to recuse. This is more common in lower courts and, in some countries, people cannot file motions to dismiss high court judges. In this situation, one of the litigants requests a challenge or reallocation because there is a concern about the judge’s ability to handle the matter fairly.
A black defendant, for example, might request a different judge if the assigned judge made racist comments outside the courtroom, on the grounds that the judge would be biased against the defendant. Similarly, a plaintiff in a lawsuit against a public company could ask the judge to resign because he owns stock in the company and would have a bias in favor of the defendant.
When a judicial challenge takes place, the court may assign a new judge to the case or allow it to move forward with fewer judges than usual in a panel case such as the Supreme Court. If objections due to conflicts of interest become a very common problem, a judge can be reassigned to a court in another region to eliminate this problem. This can occur in small communities where judges get to know everyone and develop a number of close personal bonds.
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