Due Process and Judicial Disqualification: The Need for Reform

Abstract

In Anglo-American law, due process has always been understood to require a trial before an impartial decision-maker. America's Founders declared: "We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness."  Similarly, the Constitution provides that "[n]o person shall be ... deprived of life, liberty, or property, without due process of law." As the United States Supreme Court recently observed: "A fair trial in a fair tribunal is a basic requirement of due process."

Part II of this Comment surveys the history of disqualification law from its early beginnings, through the English common law, to modem American standards. This study highlights the well-known underlying structural tension in a constitutional democracy-between the rule of law and the rule of the people-as well as its consequence: the tension between judicial impartiality and judicial accountability. Part III expounds on the current state of recusal law in the states as well as in the federal judiciary.' A brief consideration of the ABA's Model Code of Judicial Conduct is followed by references to recusal statutory and case law in the fifty states and the District of Columbia. The federal disqualification statutes are discussed. The most significant United States Supreme Court disqualification jurisprudence is then analyzed, together with the recusal practices of the justices in the modern era. Part IV makes the argument for reforning the law of judicial disqualification, both state and federal. The need for recusal reform is presented in detail and several solutions are proposed. Part V succinctly concludes this Comment. Finally, a concise review of the disqualification laws in the fifty states and the District of Columbia is provided in the Appendix.